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Alden  Chester 


ALDEX  CHESTER. 
Editor  of  this  work;  Justice  Supreme  Court  since  1895. 


LEGAL   AND   JUDICIAL 

HISTORY  OF  NEW  YORK 


VOLUME  I 


ALDEN  CHESTER 
EDITOR 


NATIONAL  AMERICANA  SOCIETY 

NEW  YORK 

1911 


r: 


Associate  Editors 


J.  HAMPDEN  DOUGHERTY 
LYMAN  HORACE  WEEKS 

FREDERICK  E.  WADHAMS, 

Secretary  State  Bar  Association, 
Treasurer  American  Bar  Association. 


Copyright 

National  Americana  Socibtt 

1911 


TABLE   OF  CONTENTS 


Volume  I 


PAGE 

Chapter  I — Planting   of   Dutch   Institutions           -          -  3 

Chapter  II — Under  the  Rule  of  Stuyvesant            -          -  45 

Chapter  III — Dutch  Magistrates  and  Lawyers       -          -  97 

Chapter  IV — English  Institutions  Supersede   the   Dutch  149 

Chapter  V — English   Authority   Fully   Established         -  195 

Chapter  VI— In  the  Colonial  Period      -         -         -         -  231 

Chapter  VII— The  English  Colonial  Courts     -         -         -  269 

Chapter  VIII— Beginnings  of  Statehood          -         -         -  323 

Chapter  IX — Another  Half  Century  of  Development       -  377 

Chapter  X— On  the  Threshold  of  the  Twentieth  Century  -  421 


PREFACE 

It  has  been  said  that  "history  makes  haste  to  record  great 
deeds  but  often  neglects  good  ones." 

Considering  the  largeness  and  the  importance  of  the  subject 
as  a  whole,  the  legal  and  judicial  annals  of  the  province  and  State 
of  New  York  have  received,  comparatively  speaking,  scant  at- 
tention from  the  historian.  Material  for  such  a  history  has  long 
existed  in  abundance,  but  for  the  most  part  it  is  widely  scattered, 
and  even  by  those  who  have  essayed  to  write  upon  it,  has  been  more 
or  less  meagrely  treated.  With  few  notable  exceptions  there  has 
been  no  adequate  effort  to  review  any  individual  phase  of  the 
subject  thoroughly  and  comprehensively,  or  to  make  any  com- 
plete history  of  it.  The  late  Judge  Charles  P.  Daly  wrote  a 
learned  essay  upon  the  state  of  jurisprudence  during  the  Dutch 
and  early  English  periods,  leading  down  to  and  comprising  a 
history  of  the  early  years  of  the  court  of  common  pleas,  of  which 
he  was  so  long  the  renowned  chief  justice.  This  well  known 
essay  was  originally  printed  as  an  introduction  to  the  first  vol- 
ume of  E.  D.  Smith's  "Reports  of  the  Court  of  Common  Pleas," 
and  afterwards  was  reprinted  in  pamphlet  form  and  in  a  history 
of  the  bench  and  bar  of  New  York.  James  Wilton  Brooks'  his- 
tory of  the  same  court  is  one  covering  the  entire  period  from  its 
beginning  until  its  final  dissolution,  and  is  a  valuable  contribu- 
tion to  the  legal  history  of  the  metropolis.  Other  than  these 
two  works,  nearly  everything  that  has  been  written  and  printed 
upon  the  subject  has  been  principally  in  the  form  of  monographs 
for  introductions  to  various  editions  of  law  reports  or  of  chap- 


PREFACE 

ters  to  histories  of  the  city  or  State  of  New  York.  Without  at- 
tempting to  make  an  exhaustive  Hst,  Amasa  A.  Redfield,  Charles 
A.  Truax,  Robert  Ludlow  Fowler,  Wheeler  H.  Peckham,  Ben- 
jamin B.  Silliman,  Adolph  J.  Rodenbeck,  and  others,  may  be 
recalled  among  the  contemporaneous  writers  upon  this  subject. 
For  the  most  part  these  contributions  have  been  of  a  technical 
character.  There  have  been  some  personal  reminiscences  of 
the  bench  and  bar  and  some  accounts  of  famous  trials,  but,  gen- 
erally speaking,  the  narrative  history,  either  of  periods  or  of 
divisions  of  the  subject,  has  been  a  negligible  quantity. 

Much  pertaining  to  the  subject  is  embodied  in  the  old  col- 
onial records,  but  there,  almost  without  exception,  it  is  carried 
in  connection  with  the  general  history  of  the  political,  industrial 
and  social  foundation  and  development  of  the  province  and 
commonwealth.  All  the  important  histories  of  New  York  City 
and  State  have  preserved  more  or  less  concerning  the  early 
courts  and  judges,  but  there  again  the  matter  presented  has  been 
incidental  to  the  general  historical  treatment,  and  has  in  no  wise 
been  segregated  as  covering  an  independent  field  of  investiga- 
tion. Material  of  this  character  is  found  in  the  documentary 
collections  of  E.  B.  O'Callaghan,  in  the  same  author's  "Docu- 
mentary History  of  New  York,"  in  Berthold  Fernow's  "Records 
of  New  Amsterdam,"  in  the  same  author's  "Records  of  the 
Orphanmasters'  Court  of  New  Amsterdam,"  William  L.  Stone's 
"History  of  New  York,"  J.  R.  Brodhead's  "History  of  New 
York,"  William  Dunlap's  "History  of  New  York,"  Werner's 
"Civil  List"  and  elsewhere.  The  investigator  also  finds  much  of 
interest  and  value  in  various  state  papers,  in  many  old  Dutch 
documents,  in  the  Van  Rensselaer  Bowier  Manuscripts,  in  the 
"Journal  of  the  Votes  and  Proceedings  of  the  General  Assembly 
of  the  Colony  of  New  York,"  in  Street's  "Council  of  Revision," 

ii 


PREFACE 

in  papers  published  by  the  New  York  Historical  Society,  and  in 
numerous  other  works,  no  complete  list  of  which  need  here  be 
presented. 

In  the  first  volume  of  this  work  the  attempt  has  been  made 
to  record  chronologically  and  with  as  much  thoroughness  as  the 
limitations  of  a  single  volume  has  permitted,  the  history  of  the 
legal  institutions  and  the  administration  of  justice  in  the  Colony 
and  State  of  New  York  during  their  three  hundred  years  of 
existence  from  the  time  of  their  first  planting  under  the  Dutch 
down  to  the  beginning  of  the  twentieth  century.  Necessarily 
the  work  of  the  writer  has  been  largely  that  of  compilation  in 
bringing  together  from  every  available  source  of  information 
whatever  may  have  been  recorded  by  preceding  writers  con- 
cernmg  the  subject,  and  weaving  all  this  divergent  material  into 
a  complete,  logical  and  consistent  narrative.  Nothing  of  this 
kind  has  ever  before  been  essayed,  and  it  is  believed  that  from 
these  pages  it  will  be  possible  to  have  a  clear  conception  of  the 
character  of  our  legal  institutions,  the  source  of  their  origin,  and 
the  manner  in  which,  gradually,  from  one  generation  to  another, 
they  developed  from  small  and  crude  beginnings  to  their  present 
proportions. 

Much  space  has  been  given  to  detailed  consideration  of  the 
first  eflForts  to  establish  courts  and  to  fix  judicial  procedure  and 
administration  under  the  Dutch  governors  and  the  English  gov- 
ernors who  succeeded  them  in  the  seventeenth  and  eighteenth 
centuries.  These  pages,  with  their  accounts  of  the  early  courts 
and  sketches  of  the  men  who  presided  over  them,  with  tran- 
scripts of  many  of  the  records  of  trials  of  those  days,  constitute 
an  interesting  picture  of  the  colonial  times.  More  than  that,  in 
the  present  connection  they  are  valuable  to  every  student,  show- 
ing in  what  manner  American  jurisprudence,  and  the  machinery 

Hi 


PREFACE 

of  judicial  administration  as  they  exist  in  New  York  State  to- 
day, have  been  developed  from  that  early  foundation,  and  to 
what  extent  the  law  and  equity  of  to-day  have  been  derived 
from  the  wisdom  and  integrity  of  the  pioneers. 

A  large  part  of  the  volume  has  been  devoted  to  the  history 
of  the  courts  and  an  account  of  the  judges  and  other  judicial 
officers  of  the  colonial  period.  This  matter  has  never  before 
been  brought  together  in  a  consecutive  chronological  narrative, 
and  it  is  believed  that  its  presentation  here,  in  this  shape,  will 
be  of  enduring  interest  and  value.  During  the  colonial  period 
the  courts  constituted  a  part  of  the  political  system  of  the  prov- 
ince, being  based  first  upon  the  king's  prerogative  as  exercised 
by  the  arbitiary  will  of  the  governors,  and  subsequently  being 
founded  upon  a  statutory  basis  by  legislative  enactments,  which, 
however,  were  subject  to  the  approval  or  disapproval  of  the 
governors  and  the  English  king. 

With  the  beginning  of  statehood,  the  courts  of  the  common- 
wealth were  placed  upon  a  constitutional  foundation.  Their 
history  in  this  respect  has  been  exhaustively  treated  in  the  sec- 
ond volume  of  this  work.  Therefore,  the  chapters  in  the  first 
volume,  treating  of  this  period,  have  been  confined  principally 
to  a  record  of  the  annals  of  the  courts  as  established  by  the  sev- 
eral constitutions,  and  a  consideration,  more  or  less  extended,  of 
the  work  accomplished  by  them  and  of  the  careers  of  many  of 
the  eminent  judges  who  have  sat  upon  the  bench  during  the  last 
one  hundred  and  twenty-five  years. 

The  text  of  the  first  volume  was  almost  wholly  written  by 
Mr.  Lyman  Horace  Weeks,  formerly  editor  of  the  American 
Historical  Magazine,  who  is  specially  fitted  for  the  work  by  rea- 
son of  his  many  years  devotion  to  historical  research  and  study. 
He  has  made  no  effort  here  to  be  a  "maker  of  history,"  for  noth- 

iv 


PREFACE 

ing  of  romance  will  be  found  upon  these  pages.  They  reveal  rather 
a  painstaking  effort  to  gather  the  facts  of  history  from  many 
widely  scattered  sources  and  to  portray  them  in  a  truthful  and 
interesting  manner,  and  they  embody,  it  is  believed  for  the  first 
time,  anything  like  a  comprehensive  treatment  of  the  general 
subject  of  the  work. 

The  constitutional  development  of  New  York  has  been 
treated  in  a  masterful  way  in  the  second  volume.  This  is  wholly 
the  production  of  the  pen  of  Mr.  J.  Hampden  Dougherty,  the 
well  known  lawyer  and  author.  It  is  believed  that  his  work  is 
a  contribution  to  the  legal  literature  of  the  State  which  will  not 
only  be  of  great  present  interest  but  of  permanent  value.  The 
scope  of  that  volume  has  been  carefully  outlined  in  the  introduc- 
tion to  it,  and  need  not  be  here  repeated. 

Mr.  Weeks  has  also  contributed  all  the  local  monographs 
in  the  third  volume  except  such  as  have  been  signed  by  others. 
Many  matters  of  local  occurrence  but  of  general  interest  have 
been  mentioned.  If  space  had  been  afforded  these  monographs 
could  have  been  largely  amplified,  for  many  of  the  local  histories 
which  have  been  consulted  are  rich  in  materials  which  could  well 
have  been  drawn  upon  for  such  additional  matter. 

A  generous  number  of  pictures  and  portraits,  many  of  them 
rare  and  difficult  to  procure,  has  been  included  in  the  work.  A 
brief  description  accompanies  each.  It  is  to  be  regretted  that 
many  other  portraits  of  prominent  persons  mentioned  in  the 
work  and  worthy  of  a  place  in  it  could  not  be  inserted,  but  this 
could  not  be  done  without  extending  the  bulk  of  the  volumes  to 
inconvenient  proportions. 

The  critical  reader  should  bear  in  mind  that  the  writers  of 
history  have  been  more  generous  in  recording  the  deeds  of  war- 
riors and  statesmen  than  those  of  lawyers  and  jurists,  and.  there- 

v 


PREFACE 

fore,  that  the  preparation  of  this  work,  covering  a  comparatively- 
new  field,  has  not  been  without  its  difficulties.  History  made 
upon  the  field  of  battle,  in  legislative  halls  and  in  executive 
chambers,  may  be  more  attractive  to  the  general  reader  than 
such  as  is  here  recorded.  But  it  is  hoped  that  the  subject  of 
these  volumes  and  the  method  of  its  treatment  may  not  be  with- 
out permanent  value  and  interest  to  all  who  have  faith  in  our 
institutions,  and  who  believe  that  the  security  of  them  all  rests 
upon  the  integrity  of  our  courts  and  the  stability  of  our  judicial 
system. 

ALDEN  CHESTER. 
Albany,  N.  Y.,  October,  1910. 


VI 


CHAPTER  I 
The  Planting  of  Dutch  Institutions 


CHAPTER  I 

The  Planting  of  Dutch  Institutions 

1609 — 1644 

HENRY  Hudson's  discovery  of  Manhattan  island,   its  bay 

AND    ITS    rivers — ^THE    DUTCH     COLONIZATION CHARTER    OF 

THE  WEST  INDIA  COMPANY — CORPORATE  ADMINISTRATION  AND 
JUDICIAL  PROCEDURE  FORMALLY  ESTABLISHED  UNDER  PETER 
MINUIT — INSTITUTION  OF  THE  PATROON  SYSTEM — THE  PA- 
TROON  COURTS,  JUDICIAL  POWERS  OF  THE  PATROONS  AND  THEIR 
METHODS  OF   ADMINISTERING  THE  LAW. 

Beginning  with  the  opening  years  of  the  seventeenth  century, 
the  Dutch  RepubHc  for  more  than  six  decades  maintained  com- 
mercial and  civic  supremacy  on  the  island  of  Manhattan  and 
contiguous  territory.  Although  this  supremacy  was  academically 
disputed  by  the  English  from  time  to  time,  and  was  threatened 
by  the  aggressive  New  Englanders  of  Massachusetts  and  Con- 
necticut, it  continued  without  being  seriously  disturbed  until,  by 
the  English  seizure  in  1664  and  subsequently  the  terms  of  the 
treaty  of  Westminster  between  England  and  Holland  in  1674, 
New  Amsterdam  was  finally  and  forever  wrested  from  the  pos- 
session of  its  founders.  In  the  beginning  many  Dutch  institu- 
tions were  established  and  others  were  gradually  planted,  but 
legal  and  judicial  procedure  were  slow  in  taking  form.  For  fully 
one-half  of  the  period  of  Dutch  occupation  nothing  bearing 
resemblance  to  real  government  existed.  There  was  no  thought, 
indeed  there  was  neither  necessity  nor  disposition,  to  establish 

3 


LEGAL   AND   JUDICIAL 

courts  or  to  exercise  any  legal  form  of  authority.  The  settle- 
ments were  merely  of  temporary  character,  nothing  more  than 
small  trading  posts.  In  a  general  way  the  pioneers  held  them- 
selves amenable  to  the  law  of  the  home  country,  but  broadly 
speaking  they  were  a  law  unto  themselves.  Wholly  dominated 
by  passion  for  adventure  and  trading,  they  did  not  even  dream 
of  laying  the  foundations  for  a  future  empire  or  state. 

With  the  advent  of  the  West  India  Company  in  1621,  began 
a  semblance  of  legal  control.  In  the  charter  of  that  company 
certain  powers  were  granted,  and  these,  asserted  tentatively  at 
first,  gradually  broadened  in  scope  and  developed  in  importance 
as  the  colony  grew  in  size  and  diversified  interests.  During  the 
first  years  of  the  West  India  Company  there  was  little  exercise 
of  legal  restraints  except  by  the  arbitrary  will  of  the  successive 
directors.  But  with  the  introduction  of  the  patroon  system,  and 
more  especially  with  the  advent  of  Director  General  Stuyvesant, 
began  the  real  legal  and  judicial  history  of  the  Colony,  Province 
and  State.  Before  the  arrival  of  the  English  and  the  alienation 
of  the  colony  from  the  Dutch,  courts  had  been  fully  established 
and  legal  procedures  adopted,  based  on  the  Dutch  law  of  the 
mother  country.  Notwithstanding  all  this  was  set  aside  by  the 
newcomers  and  English  forms  substituted,  the  impress  of  the 
Dutch  period  in  these  respects  lias  never  wholly  disappeared,  but 
has  persisted  in  many  ways  to  the  present  day. 

Qearly  to  understand  the  Dutch  legal  system  as  imposed 
upon  this  colony,  it  becomes  necessary  to  consider  the  history  of 
the  Dutch  discovery  and  settlement  of  Manhattan  and  the  evolu- 
tion of  the  trading  posts  into  communities  of  civic  importance. 
That  Verazzano  in  1524  entered  the  bay  enclosed  by  Manhattan, 
Staten,  and  Long  Island,  and  that  Gomez  in  the  following  years 
sailed  these  waters,  is  now  accepted  as  well  established  history; 

4 


HISTORY  OF  NEW   YORK 

and  some  students  of  the  period  will  always  hold  to  the  not 
entirely  nebulous  theory  that  in  the  latter  part  of  the  sixteenth 
century  Holland  fishermen  in  the  employ  of  a  Greenland  com- 
pany, as  well  as  occasional  Spanish,  French  and  Portuguese  sail- 
ors, were  in  the  habit  of  resorting  to  this  region  for  shelter  during 
the  winter  months.^ 

However  that  may  have  been,  it  remained  for  Henry  Hud- 
son, the  intrepid  Englishman,  sailing  in  the  employ  of  the  Dutch 
East  India  Company,  on  the  historical  vessel  Halve  Mane  (Half 
Moon),  in  September,  1609,  to  discover  or  rediscover  the  noble 
river  which  ever  since  has  borne  his  name,  and  the  island  of  Man- 
hattan with  its  adjacent  territory.  He  first  drew  European  atten- 
tion to  this  part  of  the  new  world,  pointed  out  the  location  as  an 
advantageous  place  for  trading  posts  with  the  Indians,  and  opened 
the  way  for  the  Dutch  Republic  to  lay  claim  to  unappropriated 
lands,  vast  in  extent  and  holding  incalculable  possibilities  of 
wealth.  The  territory  to  which  the  Dutch  asserted  title  by  virtue 
of  Hudson's  discovery  extended  along  the  eastern  shores  of  the 
continent,  from  Delaware  Bay  on  the  south  to  Cape  Cod  on  the 
northeast,  and  the  great  river  of  Canada  on  the  north ;  inland  it 
ranged  indefinitely,  its  bounds  naturally  being  unmarked  and 
limited  only  by  the  enterprise  of  future  explorers.  This  wide 
land  never  came  completely  under  the  control  of  the  Dutch,  but 
on  Manhattan  Island,  at  the  mouth  of  the  Hudson  River,  the 
adventurers  from  Holland  eventually  established  a  community 
which,  although  lost  to  them  after  a  few  years,  has  always 
retained  in  its  institutions  much  of  its  fundamental  Dutch  char- 
acter. 

The  age  in  which  lived  Hudson  and  his  successors  in  explora- 
tion, was  one  of  big  enterprise  in  finding  and  developing  the 


'History  of  New  York  City,"  by  William  L.  Stone. 

5 


LEGAL  AND  JUDICIAL 

resources  of  unknown  countries  throughout  the  world.  All  the 
powerful  nations  of  Europe, — England,  Holland,  Spain,  Portu- 
gal, France — were  reaching  out  after  new  lands,  eager  for  the 
wealth  expected  to  come  therefrom.  Particularly  at  the  time 
when  Hudson  made  his  discovery,  the  Dutch,  nationally  and  indi- 
vidually, were  hungering  for  riches  more  than  ever  before. 
After  upward  of  forty  years  of  warfare,  Holland,  by  the  treaty 
of  Antwerp  in  1609,  establishing  the  twelve  years'  truce,  had  just 
won  for  itself  substantial  independence  from  the  kingdom  of 
Spain.  Still  the  nation  was  not  fully  assured  of  fixed  and  lasting 
security;  apprehension  lest  other  aggression  from  strong  neigh- 
bors might  come  at  any  time,  continued  to  hold  the  public  mind. 
Even  more  than  before,  the  people  were  alert  to  the  necessity  of 
devising  other  means  than  they  then  had  to  enrich  themselves 
and  to  prepare,  so  far  as  wealth  might  prepare,  in  possible  future 
contingencies,  for  the  national  defense. 

At  this  opportune  moment  Henry  Hudson  brought  to  Europe 
and  to  his  employers  in  Amsterdam  the  report  of  his  landfall. 
Under  the  circumstances  the  discovery  must  have  seemed  to  them 
well-nigh  providential  when  they  contemplated  the  enormous 
possibilities  therein.  Naturally  the  idea  that  this  land  across  the 
Atlantic  would  be  a  mine  of  almost  unlimited  wealth  at  once 
impressed  them,  for,  in  common  with  the  rest  of  Europe,  they 
were  firm  in  the  belief  that  the  American  continent  was  a  true 
Golconda.  Despite  this,  however,  they  were  somewhat  slow  in 
initiating  plans  to  fix  a  firm  hold  upon  the  territory. 

For  the  purpose  of  exploiting  and  developing  the  regions 
that  were  then  being  brought  to  light  in  various  parts  of  the 
world,  great  monopolies  holding  charters  of  the  broadest  char- 
acter had  been  conceived.  Such,  among  others,  was  the  Dutch 
East  India  Company,  which  had  been  in  existence  since  1602.  The 

6 


HISTORY  OF  NEW   YORK 

charter  of  this  company  granted  the  privilege  of  trading  only  in 
the  East  Indies  and  on  the  eastern  coast  of  Asia  and  Africa.  By 
reason  of  those  limitations  that  corporation  was  not  in  position 
to  take  advantage  of  the  good  fortune  of  Hudson,  who  had  been 
sent  out  not  to  make  discoveries  in  the  west,  but,  if  possible,  to 
find  a  passage  to  the  east  through  the  waters  north  of  the  Ameri- 
can continent.  Nevertheless,  private  individuals  were  quick  to 
realize  that  profits  might  be  reaped  in  the  way  of  commerce 
with  this  new  country,  even  if  nothing  more  should  come  from  it. 
Almost  immediately  upon  the  return  of  Hudson,  trading  was 
inaugurated  between  Holland  and  America,  and  gradually  this 
grew  to  considerable  proportions.  For  several  years  in  succes- 
sion, one  or  more  ships  were  annually  dispatched  across  the 
Atlantic,  and  from  these  ventures  accrued  a  profit  that  was 
exceedingly  gratifying  to  their  promoters. 

In  1612,  among  the  early  navigators  to  Manhattan  Island 
and  vicinity,  two  were  particularly  prominent.  These  were  Cap- 
tain Hendrick  Corstiaensen,  or  Christiaensen,  and  Captain 
Adriaen  Block.  So  successful  were  they  in  their  trading  with  the 
Indians  that  in  the  following  year  they  made  another  voyage 
together.  Captain  Christiaensen  spent  the  winter  on  Manhattan, 
and  had  a  redoubt  on  the  lower  end  of  the  island.  He  explored 
the  Hudson  River  as  far  as  the  head  of  navigation,  and  on  Castle 
Island,  on  the  west  side  of  the  river,  a  little  below  the  later  site 
of  the  city  of  Albany,  he  built  a  fort — the  first  stronghold  of  the 
Dutch  on  the  continent.  Captain  Block  explored  the  East  River, 
and  also  sailed  eastward  through  Long  Island  Sound,  Block 
Island,  in  those  waters,  in  modern  times  commemorating  his 
achievement. 

When  Adriaen  Block  appeared  before  the  authorities  at  the 
Hague  after  his  return  from  this  expedition  in  1614,  the  reports 

7 


LEGAL  AND  JUDICIAL 

that  he  presented,  fortified  also  with  his  map  of  the  region  which 
he  and  Christiaensen  had  so  industriously  investigated,^  the 
interest  of  the  Dutch  was  more  than  ever  stimulated  to  carry  on 
trading  witli  the  western  land  upon  a  larger  and  more  ambitious 
scale.  In  March,  1614,  previous  to  the  return  of  Block,  the 
States  General  had  published  a  decree  in  the  form  of  a  "Gen- 
eral Charter  for  Those  who  discovered  New  Passages,  Havens, 
Countries,  or  Places."  This  charter,  of  sweeping  character,  was 
calculated  to  encourage  enterprise,  and  it  gave  handsome  monop- 
olies of  trade  in  such  countries  as  might  be  found  by  trading 
ships.^  When  Block  arrived  he  entered,  under  the  provisions  of 
the  decree,  a  claim  for  himself  and  the  merchants  he  represented. 
On  October  11,  1614,  the  States  General  granted  to  him  and  his 
associates  a  charter  covering  the  privilege  of  trading  in  the  land 
which  he  had  explored,  for  a  period  of  three  years  from  the  fol- 
lowing first  of  January.  In  this  charter  the  name  of  New  Neth- 
erland  was  first  applied  to  this  portion  of  the  American  continent. 
A. translation  of  the  charter  is  herewith  given: 

"The  STATES  GENERAL  of  the  United  Netherlands,  to  all  to  whom 
these  presents  shall  come,  Greeting. 

"Whereas,  Gerrit  Jacobz  Witssen,  anticnt  Burgomaster  of  the  City 
of  Amsterdam,  Jonas  Witssen,  Simon  Morrissen,  owners  of  the  ship 
named  the  Little  Fox  whereof  Jan  de  With  has  been  Skipper ;  Hans 
Hongers,  Paulus  Pelgrom,  Lambrccht  van  Tweehuyzen,  owners  of  the  two 
ships  named  the  Tiger  and  the  Fortune,  whereof  Adriaen  Block  and 
Hendrick  Christiaenssen  were  Skippers;  Arnolt  van  Lybergen,  Wessel 
Schenck,  Hans  Claessen,  and  Berent  Sweertssen,  owners  of  the  Ship 
named  the  Nightingale,  whereof  Thys  Volckertssen  was  Skipper,  Mer- 
chants of  the  aforesaid  city  of  Amsterdam ;  and  Peter  Clementssen 
Brouwer,  Jan  Clementssen  Kies,  and  Cornelius  Volckertssen,  Merchants 
of  the  city  of  Hoorn,  owners  of  the  Ship  called  the  Fortuyn,  whereof 


2.  "The  Figurative  Map." 

3.  "Documents  Relative  to  the  Colonial  History  of  the  State  of  New 
York,  by  E.  B.  O'Callaghan,  M.  D.,  LL.D.,  vol.  I,  p.  5. 


HISTORY  OF  NEW   YORK 

Cornelis  Jacobssen  May  was  Skipper,  all  now  associated  in  one  Com- 
pany, have  respectfully  represented  to  us,  that  they,  the  petitioners,  after 
great  expenses  and  damages  by  loss  of  ships  and  other  dangers,  had,  dur- 
ing the  present  year,  discovered  and  found  with  the  above  named  five 
ships  certain  New  Lands  situate  in  America,  between  New  France  and 
Virginia,  the  Seacoasts  whereof  lie  between  forty  and  forty-five  degrees 
of  Latitude,  and  now  called  New  Netherland:  And  whereas  We  did,  in 
the  month  of  March  last,  for  the  promotion  and  increase  of  Commerce, 
cause  to  be  published  a  certain  General  Consent  and  Charter  setting  forth, 
that  whosoever  should  thereafter  discover  new  havens,  lands,  places  or 
passages,  might  frequent,  or  cause  to  be  frequented,  for  four  voyages, 
such  newly  discovered  and  found  places,  passages,  havens,  or  lands,  to  the 
exclusion  of  all  others  from  visiting  or  frequenting  the  same  from  the 
United  Netherlands,  until  the  said  first  discoveries  and  finders  shall,  them- 
selves, have  completed  the  said  four  voyages,  or  caused  the  same  to  be 
done  within  the  time  prescribed  for  that  purpose,  under  the  penalties 
expressed  in  the  said  Octroy  &c,  they  request  that  we  would  accord  to 
them  due  Act  of  the  aforesaid  Octroy  in  the  usual  form : 

"Which  being  considered.  We,  therefore,  in  Our  Assembly  having 
heard  the  pertinent  Report  of  the  Petitioners,  relative  to  the  discoveries 
and  finding  of  the  said  new  Countries  between  the  above  named  limits 
and  degrees,  and  also  of  their  adventures,  have  consented  and  granted, 
and  by  these  presents  do  consent  and  grant,  to  the  said  Petitioners  now 
united  into  one  Company,  that  they  shall  be  privileged  exclusively  to  fre- 
quent, or  cause  to  be  visited,  the  above  newly  discovered  lands,  situate 
In  America  between  New  France  and  Virginia,  whereof  the  Seacoasts 
lie  between  the  fortieth  and  forty-fifth  degree  of  Latitude,  now  named 
New  Netherland,  as  can  be  seen  by  a  Figurative  Map  hereunto  annexed, 
and  that  for  four  voyages  within  the  term  of  three  Years,  commencing 
the  first  of  January,  Sixteen  hundred  and  fifteen  next  ensuing,  or  sooner, 
without  it  being  permitted  to  any  other  person  from  the  United  Nether- 
lands to  sail  to,  navigate,  or  frequent  the  said  newly  discovered  lands, 
havens,  or  places,  either  directly  or  indirectly,  within  the  said  three 
Years,  on  pain  of  Confiscation  of  the  vessel  and  Cargo  wherewith  infrac- 
tion hereof  shall  be  attempted,  and  a  fine  of  Fifty  thousand  Netherland 
Ducats  for  the  benefit  of  said  discoverers  or  finders ;  provided,  neverthe- 
less, that  by  these  presents  we  do  not  intend  to  prejudice  or  diminish 
any  of  our  former  grants  or  Charters;  And  it  is  also  Our  intention,  that 
if  any  disputes  or  differences  arise  from  these  Our  Concessions,  they  shall 
be  decided  by  Ourselves. 

"We  therefore  expressly  command  all  Governors,  Justices,  OflScers, 
Magistrates,  and  inhabitants  of  the  aforesaid  United  Countries,  that  they 
allow  the  said  Company  peacefully  and  quietly  to  enjoy  the  whole  bene- 

9 


LEGAL  AND  JUDICIAL 

fit  of  this  our  Grant  and  consent,  ceasing  all  contradictions  and  obstacles 
to  the  contrary.  For  such  we  have  found  to  appertain  to  the  public  ser- 
vice. Given  under  Our  Seal,  paraph  and  signature  of  our  Secretary  at 
the  Hague  the  xith  of  October,  1614."* 

Without  delay  the  New  Netherland  Company  proceeded  to 
exercise,  to  the  fullest  extent,  the  opportunities  granted  by  this 
charter,  and  its  members  appear  to  have  profited  well  thereby. 
Upon  the  expiration  of  the  period  of  the  charter,  January  I, 
1 618,  the  company  was  able  to  secure  a  renewal  for  the  reason 
that  the  financial  success  which  had  attended  the  venture  had 
excited  the  interest  of  others,  who  now  demanded  that  this  exclu- 
sive monopoly  should  no  longer  be  permitted,  but  that  others 
should  be  admitted  to  the  privilege  of  sending  ships  thither.  From 
that  time  on,  the  members  of  the  company,  as  individual  mer- 
chants, were  compelled  to  compete  with  rivals  working  like  them- 
selves under  special  licenses. 

Thus  affairs  went  on  for  three  years.  Gradually  out  of  these 
intermittent  ventures  the  seed  of  a  stable  and  permanent  coloniza- 
tion on  Manhattan  Island  was  planted,  and  when  the  time 
arrived  for  the  formal  establishment  of  Dutch  authority  over 
this  territory,  the  enterprise  was  along  commercial  lines,  as  had 
been  the  trading  which  had  preceded  it.  The  metropolis  of  the 
western  hemisphere  thus  had  its  origin  and  its  early  development 
in  the  pursuit  of  commerce.  An  American  historian  has  well 
said: 

"Adventure  brought  men  to  Virginia ;  politics  and  religion  to  New 
England;  philanthropy  to  Georgia;  but  New  York  was  founded  by  trade 
and  for  trade  and  for  nothing  else.  The  settlement  on  the  island  of  Man- 
hattan was  due  to  the  active  spirit  of  Dutch  commerce.'" 


4.  "Documents  Relative  to  the  Colonial  History  of  the  State  of  New 
York,"  vol.  I,  p.  II. 

5.  "A  Short  History  of  the  English  Colonies  in  America,"  by  Henry 
Cabot  Lodge,  p.  285. 

10 


HISTORY  OF  NEW   YORK 

On  the  same  point,  another  historian  treating  of  the  Dutch 
period  of  the  history  of  New  York  has  similarly  said : 

"Among  the  causes  which  gave  birth  to  the  province  of  New  Nether- 
land  and  stimulated  the  industry  of  its  citizens,  none  are  so  marked  as 
the  desire  of  gain.  Religious  persecutions  peopled  New  England  and 
Virginia.  Colonists  were  driven  to  the  inhospitable  coasts  of  the  former 
by  the  prelates ;  to  the  fertile  bottoms  of  the  latter  by  the  Roundheads. 
But  neither  religious  nor  political  persecutions  stimulated  in  any  way 
the  settlement  of  America  by  the  Dutch.  Trade  was  their  great  aim, 
and  edicts  and  ordinances  for  its  regulation,  especially  with  the  Indians, 
entered  largely  into  their  legislation."* 

Then  the  West  India  Company  came  forward.  To  derive 
financial  profit  from  the  settlement,  rather  than  to  create  a  new 
province  for  the  advancement  of  social  prosperity  and  political 
principles,  was  the  aim  of  this  company,  as  had  been  that  of  its 
predecessors.  The  members  of  the  Company  were  merchants 
rather  than  statesmen.  As  far  back  as  1604,  William  Usselinx 
had  begun  an  effort  to  secure  a  Holland  charter  for  a  strong 
financial  corporation  which  should  carry  on  the  work  of  taking 
from  Spain  her  fleets  and  her  possessions  in  the  American  hemis- 
phere. It  was  not,  however,  until  161 8  that  this  project  was  seri- 
ously considered  by  the  States  General,  and  three  years  later, 
June  3,  1 62 1,  the  charter  of  the  Dutch  West  India  Company, 
which  appears  to  have  been  an  outcome  of  the  plans  and  agitation 
of  Usselinx,  was  finally  signed.  This  corporation  had  a  cap- 
italization of  seven  millions  of  florins  ($2,800,000),  and  its  con- 
trol was  divided  between  five  chambers  which  were  representative 
of  the  large  cities  of  Holland.  The  Chamber  of  Amsterdam 
having  the  heaviest  subscribers  to  the  Company,  had  particular 
authority  over  the  New  Netherland  Colony.  To  a  College  or 
Assembly  of  Nineteen — eighteen  delegates  from  the  five  cham- 


6.    "History  of  New  Netherland",  by  E.  B.  O'Callaghan,  M.  D.,  LL.D., 
vol.  II,  p.  338. 

11 


LEGAL   AND   JUDICIAL 

bers  and  a  representative  of  the  States  General, — sitting  in  Am- 
sterdam, was  given  executive  control  and  full  authority  in  the 
management  of  the  affairs  of  the  Company. 

Under  the  terms  of  this  charter,  which  was  granted  for  a 
period  of  twenty-four  years  beginning  with  July  i,  1621,  the 
company  was  permitted,  "to  the  exclusion  of  all  other  inhabitants 
or  association  of  merchants  within  the  bounds  of  the  United 
Provinces,"  to  send  ships  for  trade  to  the  countries  of  America 
and  Africa  bordering  on  the  Atlantic  Ocean,  and  those  also  of 
America  on  the  side  of  the  Pacific.  Article  second  of  the  char- 
ter provided  as  follows  for  the  exercise  of  authority  by  the  Com- 
pany jwithin  the  regions  thus  carefully  defined: 

"That  moreover,  the  aforesaid  Company  may,  in  Our  name  and 
authority,  within  the  limits  herein  before  prescribed,  make  contracts, 
engagements  and  alliances,  with  the  princes  and  natives  of  the  countries 
comprehended  therein,  and  also  build  any  forts  and  fortifications  there,  to 
appoint  and  discharge  governors,  people  for  war,  and  officers  of  justice, 
and  other  public  officers,  for  the  preservation  of  the  places,  keeping  good 
order,  police,  and  justice,  and  in  like  manner  for  the  promoting  of  trade.'" 

Such,  then,  was  the  body  to  which  reverted,  by  charter  rights, 
the  possessions  in  the  new  world  which  had  fallen  to  the  citizens 
of  the  Dutch  Republic  by  the  discovery  and  exploration  of  Hud- 
son, and  by  the  trading  voyages  of  Christiaensen,  Block,  and  other 
enterprising  skippers.  New  Netherland  was  henceforth  to  be 
governed  by  an  association  of  merchants  to  whom  belonged  many 
sovereign  powers,  a  sort  of  imperium  in  imperio.  It  was  rather 
a  republic  within  a  republic,  the  one  strictly  commercial  in  its 
aims,  yet  endowed  with  important  political  and  civil  functions ; 


7.  For  full  text  of  this  charter  see  "History  of  New  Netherland,"  by 
E.  B.  O'Callaghan,  M.  D.,  LL.  D.,  vol.  I,  p.  399;  also  "Historical  Collec- 
tions :  consisting  of  State  Papers  and  other  Authentic  Documents,"  by 
Ebenezer  Hazard,  vol.  I,  p.  121. 

12 


HISTORY  OF  NEW   YORK 

the  other  strictly  the  supreme  civil  power,  but  knowing  that  its 
very  life  depended  upon  the  commercial  activity  of  its  people, 
and  therefore  ever  ready  to  stimulate  such  activity  by  the  grant 
of  the  most  extraordinary  privileges  and  prerogatives.* 

Not  until  1623  did  the  West  India  Company  complete  its 
organization.  Then  the  Amsterdam  Chamber  began  to  take 
measures  to  settle  New  Netherland,  and  a  shipload  of  colonists 
was  sent  out.  Cornelis  Jacobsen  Mey,  of  Hoorn,  was  captain 
of  this  ship,  which  was  appropriately  christened  the  New  Neth- 
erland, and  he  was  also  appointed  to  be  director  or  governor  of 
the  settlement,  and  to  have  a  general  survey  of  the  whole  expedi- 
tion and  the  plantation  in  America.  With  thirty  families  he 
sailed  from  the  Texel  in  March,  1623,  and  arrived  at  Manhattan 
Island  early  in  the  month  of  May.  Some  of  the  colonists 
remained  on  Manhattan ;  others  went  up  the  North  River  and 
built  Fort  Orange,  where  afterward  was  the  city  of  Albany; 
others  settled  on  the  South  River,  and  founded  Fort  Nassau,  near 
where  Gloucester,  in  New  Jersey,  was  built  in  later  years ;  a  few 
established  themselves  across  the  East  River,  and  founded 
Breucklelen  and  Wall-bogt;  two  families  went  up  the  Fresh 
River  (Connecticut)  and  began  to  build  Fort  Good  Hope,  on  the 
future  site  of  the  city  of  Hartford.  The  administration  of  Mey 
lasted  only  a  year,  and  in  1624  he  was  succeeded  by  Captain 
Willem  Verhulst  who,  in  turn,  remained  at  the  head  of  the  set- 
tlement for  one  year,  his  term  of  service  coming  to  an  end  with 
the  close  of  1625. 

Concerning  Director  Mey  and  Director  Verhulst,  history  has 
had  very  little  to  say.  Whether  during  these  two  years  any  pro- 
vision was  made  for  the  administration  of  justice  has  never  been 


8.     "Leslie's  History  of  the  Greater  New  York,"  by  Daniel  Van  Pelt, 
vol.  I,  p.  12. 

13 


LEGAL  AND  JUDICIAL 

detennined.  The  probability  is  that  the  colonists  were  altogether 
too  much  occupied  in  establishing  themselves  in  their  new  home 
to  trouble  themselves  with  any  thought  of  organizing  a  judicial 
tribunal.  Wessenaer,  in  his  "Historia  van  Europa",  published  in 
Amsterdam,  162 1- 1632,  gives  us  the  only  contemporary  Dutch 
account  of  events  in  America  at  this  time.*  A  single  paragraph 
from  that  work  indicates  the  spirit  in  which  it  was  proposed  to 
govern  the  colony : 

"That  being  Freemen,  they  be  settled  there  on  a  free  tenure;  that  all 
they  work  for  and  gain  be  their's  to  dispose  of  and  to  sell  it  according  to  their 
pleasure;  that  whoever  is  placed  over  them  as  Commander  act  as  their 
Father,  not  as  their  Executioner,  leading  them  with  a  gentle  hand ;  for 
whoever  rules  them  as  a  Friend  and  Associate  will  be  beloved  by  them, 
as  he  who  wiL  order  them  as  a  superior  will  subvert  and  nullify  every 
thing;  yea,  they  will  excite  against  him  the  neighboring  provinces  to  which 
they  will  fly.    'Tis  better  to  rule  by  love  and  friendship  than  by  force."" 

Very  soon  the  colony  began  to  assume  importance  in  the  eyes 
of  its  promoters  in  Holland,  who  thereupon  determined  that 
more  energetic  measures  should  be  taken  to  care  for  it  and  to 
enlarge  and  develop  the  interests  of  the  company.  To  that  end 
the  office  of  director  general  of  New  Netherland  was  consti- 
tuted, and  Petei  Minuit  was  first  appointed  to  it.  The  director 
general  sailed  from  Amsterdam  in  the  ship  Het  Meetje  (The 
Little  Sea  Mew),  December  19,  1625,  but  did  not  arrive  before 
Manhattan  Island  until  May  4,  1626. 

With  Minuit  was  the  commencement  of  definite  forms  of 
corporate  administration  and  judicial  precedure  in  New  Nether- 
land. He  brought  with  him  the  complete  plan  which  had  been 
determined  upon  for  the  government  of  the  colony  by  the  direc- 


9.  "Documentary  History  of  the  State  of  New  York",  by  E.  B.  O'Cal- 
laghan,  M.  D.,  LL.D.,  vol.  Ill,  p.  19. 

10.  Ibid.,  vol.  Ill,  p.  24. 

14 


HISTORY  OF  NEW   YORK 

tors  of  the  West  India  Company.  According  to  this  plan,  the 
director  general  was  to  be  advised  by  a  council  of  five,  who  were 
also  to  exercise  judiciary  functions,  sitting  as  a  court  for  the 
trial  of  offenses.  In  fact,  they  had  supreme  executive  and  legis- 
lative authority  in  the  colony.  Their  power  of  punishment,  how- 
ever, did  not  go  beyond  the  imposition  of  a  fine,  and  it  was  pro- 
vided that  all  capital  cases  should  be  transferred  to  the  courts  of 
the  mother  country. 

"The  director  general  and  his  council  were  invested  with  all  powers, 
judicial,  legislative,  and  executive,  subject,  some  supposed,  to  appeal  to 
Holland ;  but  the  will  of  the  company  expressed  in  their  instructions,  or 
declared  in  their  marine  or  military  ordinances,  was  to  be  the  law  of 
New  Netherland,  excepting  in  cases  not  especially  provided  for,  when 
the  Roman  Law,  the  imperial  statutes  of  Charles  V.,  the  edicts,  resolu- 
tions and  customs  of  Fatherland,  were  to  be  received  as  the  paramount 
rule   of  action."" 

"It  was  also  the  tribunal  for  the  trial  of  whatever  civil  and  criminal 
cases  might  arise,  and  all  prosecutions  before  it  were  instituted  and  con- 
ducted by  an  officer  called  Schout  Fiscaal,  whose  duties  were  equivalent 
to  those  performed  among  us  by  a  sheriff  and  an  attorney-general."" 

"The  Council  there  administrated  Justice  in  criminal  matters  as  far 
as  imposting  fines  (boct-straffe),  but  not  as  far  as  capital  punishment. 
Should  it  happen  that  anyone  deserve  that,  he  must  be  sent  to  Holland 
with  his  sentence."" 

Next  in  authority  to  the  director  general  and  council  was  the 
chief  commissary,  or  koopman,  who  was  also  the  bookkeeper  of 
the  company,  and  acted  as  secretary  of  the  province.  He  appears 
to  have  been  the  person  best  educated  for  the  proper  performance 
of  his  particular  functions,  supplementing  especially  the  lack  of 
legal  knowledge  apt  to  characterize  the  council  members.  Finally, 
there  was  a  schout,  or  schout-Hscal,  an  officer  of  ancient  Dutch 
distinction. 


II.  "History  of  New  Netherland",  by  E.  B.  O'Callaghan,  M.  D., 
LL.D.,  vol.  I,  p.  90. 

13.  Wassenaer,  in  "The  Documentary  History  of  the  State  of  New 
York",  Edition  of  1850,  vol.  HI,  p.  43. 

15 


LEGAL   AND   JUDICIAL 

"In  every  tribunal  there  is  a  schout  or  sheriff,  who  convenes  the 
judges,  and  demands  from  them  justice  for  the  litigating  parties :  for 
the  word  "schout"  is  derived  from  schuld,  debt,  and  he  is  so  denominated 
because  he  is  the  person  who  recovers  or  demands  common  debts,  accord- 
ing to  Grotius.  The  right  of  the  sovereign  in  criminal  cases,  is  sustained 
before  the  court  by  the  advocate  fiscal  or  attorney  general."" 

From  the  beginning  the  schout-Hscal  of  New  Netherland  was 
the  important  judicial  officer.  He  had  no  voice  or  vote  in  the 
coimcil,  but  was  privileged  to  sit  in  that  body  when  ques- 
tions arose  relating  to  finance,  justice,  and  police,  giving  his 
opinion  when  asked. 

"He  was  strictly  forbidden  to  accept  presents,  or  gifts,  from  any 
person  whatsover;  and  had  to  content  himself  with  the  civil  fines  and 
penalties  adjudged  to  him  and  such  part  of  the  criminal  fines  and  confis- 
cated wages  of  the  company's  servants,  as  the  director  and  council,  after 
prosecution,  might  allow.  He  was  not  to  have  any  part,  however,  of 
captured  prizes  or  confiscated  goods."" 

The  duties  of  this  official  have  been  particularly  enumerated 
by  a  New  York  historian,  as  follows : 

"He  was  charged  specially  with  enforcing  and  maintaining  the  plac- 
ards, ordinances,  resolutions  and  military  regulations,  of  the  High 
Mightinesses,  the  States  General,  and  protecting  the  rights,  domains  and 
jurisdiction  of  the  company,  and  executing  their  orders  as  well  in  as  out 
of  court,  without  favor  or  respect  to  individuals ;  he  was  bound  to  super- 
intend all  prosecutions  and  suits,  but  could  not  undertake  any  action  on 
behalf  of  the  company,  except  by  order  of  the  council ;  nor  arraign  or 
arrest  any  person  upon  a  criminal  charge,  unless  upon  information  previ- 
ously received,  or  unless  he  caught  him  in  flagrante  delicto.  In  taking 
information  he  was  bound  to  note  as  well  those  points  which  made  for 
the  person,  as  those  which  supported  the  charge  against  him,  and,  after 
trial,  he  was  to  see  to  the  proper  and  faithful  execution  of  the  sentence, 
pronounced  by  the  judges,  who,  in  indictments  carrying  with  them  loss 
of  life  and  property,  were  not  to  be  less  than  five  in  number.     He  was. 


14.  Van  Leeuwen's  "Commentaries  on  Roman  Law." 

15.  "History   of    New    Netherland",   by   E.    B.   O'Callaghan,    M.    D., 
LL.D.,  vol.  I,  p.  102. 

16 


HISTORY  OF  NEW   YORK 

moreover,  specially  obliged  to  attend  to  the  commissions  arriving  from 
the  company's  outposts,  and  to  vessels  arriving  from,  or  leaving  for  Hol- 
land, to  inspect  their  papers,  and  superintend  the  loading  and  discharging 
of  their  cargoes,  so  that  smuggling  might  be  prevented ;  and  all  goods 
introduced,  except  in  accordance  to  the  company's  regulations,  were  at 
once  to  be  confiscated.  He  was  to  transmit  to  the  directors  in  Holland, 
copies  of  all  informations  taken  by  him,  as  well  as  of  all  sentences  pro- 
nounced by  the  court ;  and  no  person  was  to  be  kept  long  in  prison  at  the 
expense  of  the  company,  without  special  cause,  but  all  were  to  be  prose- 
cuted as  expeditiously  as  possible  before  the  Director  and  council."" 

Minuit's  council  of  five  consisted  of  Peter  Bylvelt,  Jacobs 
Elbertsen  Wissinck,  Jan  Janzzen  Brouwer,  Simon  Dircksen  Pes 
and  Reynert  Harmenssen.  Jan  Lampo  was  the  first  schout-Hscal, 
being  succeeded  in  163 1  by  Coenraed  Notelman.  During  the  first 
two  years,  Isaac  De  Rasieres  was  the  koopman  and  secretary, 
and  was  succeeded  by  Jan  Van  Remund,  who  had  Lenaert  Cole 
as  assistant. 

Under  the  management  of  Minuit,  the  colony  gradually 
assumed  importance,  especially  from  the  commercial  point  of 
view,  but  trade  continued  to  be  principally  confined  to  securing 
furs  from  the  Indians.  In  other  respects  the  plantation  did  not 
develop  fast  enough  to  suit  its  Holland  promoters.  Accordingly 
plans  for  the  broadening  of  the  enterprise  and  for  a  more  gen- 
eral settlement  were  taken  under  consideration  by  the  Assembly 
of  Nineteen  of  the  West  India  Company.  The  necessity  of  induc- 
mg  adventurers  to  leave  Holland  and  make  homes  in  the  new 
world  was  recognized  as  becoming  more  and  more  pressing,  and 
various  schemes  were  considered  to  accomplish  the  end  of  found- 
ing stable  communities  in  the  territory  controlled  by  the  com- 
pany. 

"But  as  the  land,  in  many  places  being  full  of  weeds  and  wild  pro- 


16.    "History   of   New    Netherland",   by   E.    B.    O'Callaghan,    M.    D., 
LL.D.,  vol.  I,  p.  102. 

17 


LEGAL   AND   JUDICIAL 

ductions,  could  not  be  properly  cultivated  in  consequence  of  the  scantiness 
of  the  population,  the  said  Lords  Directors  of  the  West  India  Company, 
the  better  to  people  their  lands  &  to  bring  the  country  to  produce  more 
abundantly,  resolved  to  grant  divers  Privileges,  Freedoms  and  Exemp- 
tions to  all  Patrons,  Masters  or  Individuals  who  should  plant  any  Colonies 
and  cattle  in  New  Netherland,  and  they  accordingly  have  constituted  and 
published  in  print  these  following  exemptions,  to  afford  better  encourage- 
ment and  infuse  greater  zeal  into  whomsoever  should  be  inclined  to  reside 
and  plant  his  Colonic  in  New  Netherland."" 

Previous  to  that  time,  a  plan  of  settlement  had  bedn  success- 
fully tried  in  Brazil,  which  was  now  passing  into  the  possession 
of  the  West  India  Company.  According  to  the  historian  Southey : 

"It  had  then  become  of  sufficient  importance  to  obtain  some  consid- 
eration at  court,  and,  in  order  to  forward  its  colonization,  the  same  plan 
was  adopted  which  had  succeeded  so  well  in  Madeira  and  the  Azores, 
that  of  dividing  it  into  hereditary  captaincies,  and  granting  them  to  such 
persons  as  were  willing  to  embark  adequate  means  in  the  adventure,  with 
powers  of  jurisdiction  both  civil  and  criminal,  so  extensive  as  to  be  in 
fact  unlimited."" 

In  that  brief  outline  may  be  seen  the  model  for  the  patroon- 
ships  which  were  now  established  for  New  Netherland.  It  was  in 
1629  that  the  Assembly  of  Nineteen,  with  the  approbation  of  the 
States  General,  published  a  Charter  of  Privileges  and  Exemp- 
tions which  was  addressed  only  to  the  "members  of  the  com- 
pany", even  as  the  captaincies  had  been  granted  only  to  favorites 
at  the  Portuguese  court,  although  the  restriction  in  the  former 
case  was  a  more  reasonable  one  than  in  the  latter. 

"Such  members  of  the  said  Company  shall  be  acknowledged  Patroons 
of  New  Netherland  who  shall,  within  the  space  of  four  years  next  after 
they  have  given  notice  to  any  of  the  Chambers  of  the  Company  here,  or 
to  the  Commander  or  Council  there,  undertake  to  plant  a  Colonic  there 
of  fifty  souls,  upwards  of  fifteen  years  old." 


17.  "Documentary  History  of  the  State  of  New  York",  ed.  1850,  vol. 
Ill,  p.  48. 

18.  "History  of  Brazil",  by  Robert  Southey,  vol.  I,  p.  41. 

18 


HISTORY  OF  NEW   YORK 

Large  privileges  were  granted  to  these  patroons  by  which 
they  might  secure  extensive  tracts  of  land  with  rights  of  hunting, 
fishing,  pursuing  agriculture,  and  trafficing  generally  along  the 
coast,  but  they  were  expressly  restricted  from  engaging  in  the 
lucrative  trade  in  furs,  that  being  specifically  reserved  by  the  com- 
pany. Particularly  they  were  invested  with  the  feudal  privilege 
of  manorial  lords  like  those  of  the  lordships  and  seigneuries  of 
Europe, — an  introduction  of  the  old  feudal  system  into  the  new 
world.  They  were  authorized  to  erect  courts  of  justice,  and  two 
articles  in  their  charters  were  especially  indicative  of  the  judicial 
powers  thereby  granted.    Article  VI  reads: 

"They  shall  forever  possess  *  *  *  as  also  the  chief  command  and 
lower  jurisdictions.  ♦  *  *  And  in  case  anyone  should  in  time  prosper 
so  much  as  to  found  one  or  more  cities,  he  shall  have  power  and  authority 
to  establish  officers  and  magistrates  there,  and  to  make  use  of  the  title  of 
his  Colonie,  according  to  his  pleasure." 

Article  IX  of  the  charter  provided  : 

"Those  who  shall  send  persons  over  to  settle  Colonies,  shall  furnish 
them  with  proper  instructions  in  order  that  they  may  be  ruled  and  gov- 
erned conformably  to  the  rule  of  government  made,  or  to  be  made,  by 
the  Board  of  the  Nineteen,  as  well  in  the  political  as  in  the  judicial  gov- 
ernment."" 

The  general  character  of  the  patroon  courts  which  were 
established  under  this  charter,  the  judicial  powers  which  were 
vested  in  the  patroons,  or  their  agents,  and  the  methods  of  admin- 
istration, have  been  exhaustively  set  forth  by  that  eminent  his- 
torian of  the  early  Dutch  period  of  New  York,  E.  B.  O'Callag- 
han. 


19.  For  the  text  of  this  charter  in  full  see  "Documents  Relative  to 
the  Colonial  History  of  the  State  of  New  York",  vol.  II,  pp.  553-557;  also 
"History  of  New  Netherland",  by  E.  B.  O'Callaghan,  M.  D.,  LL.D.,  vol.  I, 
p.  112. 

19 


LEGAL   AND   JUDICIAL 

"Invested  as  well  by  the  Roman  law,  as  by  the  charter,  with  the  chief 
command  and  lower  jurisdiction,  the  Patroon  became  empowered  to  ad- 
minister civil  and  criminal  justice,  in  person,  or  by  deputy,  within  his 
colonic;  to  appoint  local  officers  and  magistrates;  to  erect  courts,  and  to 
take  cognizance  of  all  crimes  committed  within  his  limits;  to  keep  a  gal- 
lows, if  such  were  required,  for  the  execution  of  malefactors,  subject, 
however,  to  the  restriction  that  if  such  gallows  happened,  by  any  accident, 
to  fall,  pending  an  execution,  a  new  one  could  not  be  erected,  unless  for 
the  purpose  of  hanging  another  criminal.  The  right  to  inflict  punish- 
ments of  minor  severity  was  necessarily  included  in  that  which  authorized 
capital  convictions,  and  accordingly  we  find  various  instances  throughout 
the  record  of  the  local  court,  of  persons  who  had,  by  breaking  the  law, 
rendered  themselves  dangerous  to  society,  or  obnoxious  to  the  authorities, 
having  been  banished  from  the  colonie,  or  condemned  to  corporal  chastise- 
ment, fine  or  imprisonment,  according  to  the  grade  of  their  offense. 

"In  civil  cases,  all  disputes  between  man  and  man,  whether  relating  to 
contracts,  titles,  possessions  or  boundaries;  injuries  to  property,  person 
or  character;  claims  for  rent,  and  all  other  demands  between  the  Patroon 
and  his  tenants,  were  also  investigated  and  decided  by  these  courts;  from 
the  judgment  of  which,  in  matters  affecting  life  and  limb,  and  in  suits 
where  the  sum  in  litigation  exceeded  twenty  dollars,  appeals  lay  to  the 
Director-general  and  Council  at  Fort  Amsterdam.  But  the  local  authori- 
ties, it  must  be  added,  were  so  jealous  of  this  privilege  that  they  obliged 
the  colonists,  on  settling  within  their  jurisdiction,  to  promise  not  to 
appeal  from  any  sentence  of  the  local  tribunal. 

"The  laws  in  force  here  were,  as  in  other  sections  of  New  Nether- 
land,  the  civil  code,  the  enactments  of  the  States  General,  the  ordinances 
of  the  West  India  Company,  and  of  the  Director-general  and  council, 
when  properly  published  within  the  colonie,  and  such  rules  and  regula- 
tions as  the  Patroon  and  his  co-directors,  or  the  local  authorities  might 
establish  and  enact. 

"The  government  was  vested  in  a  general  court  which  exercised 
executive,  legislative,  or  municipal,  and  judicial  functions,  and  which  was 
composed  of  two  commissaries  (gecommit  tecrdcn),  two  councillors, 
stj'led  indiscriminately  by  raets-persoonen,  gerechts-persoonen,  or  raedts- 
vrienden,  or  schcpenen,  and  who  answered  to  modern  justices  of  the  peace. 
Adjoined  to  this  court  were  a  colonial  secretary,  a  sheriff,  or  schout- 
fiscaal  and  a  gerecht-hode,  court  messenger,  or  constable.  Each  of  these 
received  a  small  compensation,  either  in  the  shape  of  a  fixed  salary  or 
fees;  the  commissaries  and  magistrates  fifty,  one  hundred,  or  two  hun- 
dred guilders  annually,  according  to  their  standing;  the  secretary  one  hun- 
dred guilders;  and  the  court  messenger  one  hundred  and  fifty,  with  the 
addition  of  trifling  fees   for  the  transcript  and  service  of  papers.     The 

20 


HISTORY  OF  NEPy   YORK 

magistrates  of  the  colonic  held  office  for  a  year,  the  court  appointing  their 
successors  from  among  the  other  settlers,  or  continuing  those  already  in 
office,  at  the  expiration  of  their  term  of  service,  as  it  deemed  proper. 

"The  most  important  functionary  attached  to  this  government,  was, 
as  throughout  the  other  part  of  the  country,  the  schout-fiscaal,  who,  in 
discharge  of  his  public  functions,  was  bound  by  instructions  received  from 
the  Patroon  and  co-directors,  similar  in  tenor  to  those  given  to  the  same 
officer  at  the  Manhattans.  No  man  in  the  colonic  was  to  be  subject  to 
loss  of  life  or  property  unless  by  the  sentence  of  a  court  composed  of  five 
persons,  and  all  who  were  under  accusation  were  entitled  to  a  speedy  and 
impartial  trial.  The  public  Prosecutor  was  particularly  enjoined  not  to 
receive  persents  or  bribes,  nor  to  be  interested  in  trade  or  commerce, 
either  directly  or  indirectly ;  and  in  order  that  he  might  be  attentive  to  the 
performance  of  his  duties,  and  thoroughly  independent,  he  was  secured  a 
fixed  salary,  a  free  house,  and  all  fines  amounting  to  ten  guilders  ($4) 
or  under,  besides  the  third  part  of  all  forfeitures  and  amendes  over  that 
sum,  were  his  perquisites."" 

Several  directors  of  the  West  India  Company  took  prompt 
advantage  of  this  Charter  of  Freedoms  and  Exemptions.  First 
among  them  were  Samuel  Godyn  and  Samuel  Bloemmart,  who 
secured  land  on  the  shores  of  Delaware  Bay.  Killiaen  Van 
Rensselaer  obtained  territory  on  both  banks  of  the  upper  Hud- 
son :  this  he  erected  into  the  manorship  of  Rensselaerwyck,  which 
in  subsequent  years  became  famous.  Michael  Paauw,  another 
director,  became  proprietor  of  property  on  Staten  Island  and  on 
the  New  Jersey  shore  of  the  Hudson  opposite  Manhattan.  Sub- 
sequently others, — Cornells  Melyn,  Adriaen  Van  der  Donck, 
Meyndert  Meyndertse  Van  Keren,  Hendrick  Van  der  Capelle 
and  Cornells  Van  Werkhoven — followed  their  example,  and 
established  patroonships  elsewhere  in  the  neighborhood  of  I\Ian- 
hattan. 

Of  all  these  patroonships,  that  of  Rensselaerwyck  alone 
assumed  prominence  and  power.    Its  affairs  were  directed  by  men 


20.    "History   of   New   Netherland",   by   E.    B.    O'Callaghan,    U.    D., 
LL.D.,  vol.  I,  pp.  320-332. 


21 


LEGAL   AND   JUDICIAL 

of  ability,  and  among  its  officials  was  one  at  least  who  subse- 
quently became  distinguished  at  New  Amsterdam  in  the  partici- 
pation in  the  general  affairs  of  New  Netherland.  In  1632  a 
juidicial  system  consisting  of  a  schoitt  and  a  court  of  schepens 
was  laid  out  for  Rensselaerwyck,  but  it  was  two  years  before  the 
court  was  really  set  up.  It  was  the  first  local  court  established 
in  New  Netherland.  The  first  schout  was  Jacob  Albertsen 
Planck;  after  him  in  that  office  were  Adriaen  Van  der  Donck, 
Nicolas  Coorn  and  Gerard  Swart.  Arendt  van  Curler,  or  Cor- 
laer,  was  the  commissary  general,  or  superintendent,  and  he  was 
also  the  colonial  secretary  until  1642,  being  succeeded  in  that 
office  by  Anthony  De  Hooges.  Dirck  \'an  Hamel  was  also  sec- 
retary of  the  colony.  Among  the  councillors  or  schepens  at 
various  times  were  Brant  Peelen,  Gerrit  Theusze  De  Reux  or 
Reus,  Cornells  Antlionisz  Van  Schlick,  Pieter  Cornells  Van  Mun- 
nicksen,  Marinus  Adriaenz  or  Maryn  Adriaensen,  Laurens  Lau- 
renz,  Goosen  Gerritsz,  Rutger  Jacobz,  Jan  Van  Twiller,  Gerrit 
Vatrick,  Jan  Baptist  Van  Rensselaer  and  Abraham  Staas  or 
Staets,  who  was  president  of  the  council. 

Most  of  the  offenses  with  which  these  officials  had  to  deal 
were  of  minor  character.  Although  the  exercise  of  the  right  of 
capital  punishment  was  within  their  province,  it  does  not  appear 
from  the  records  that  they  were  often  called  upon  to  proceed  to 
such  an  extent  of  correction.  O'Callaghan^^  speaks  of  "the 
hangman  of  the  colony."  A  reference  to  this  statement  appears 
in  a  list  of  the  settlers  of  the  colony  from  1630  to  1658,  which 
accompanies  the  Van  Rensselaer  manuscript:^ 

"Jan  de  Neger   (the  negro),  is  credited  in   1646  with  £35  advanced 
by  him  for  clothes  which  he  was  to  receive  in  the  service  of  the  patroon, 


21.  "History  of  New  Netherland",  vol.  I,  pp.  320-441. 

22.  "Van  Rensselaer  Bowier  Manuscripts",  p.  835. 

22 


HISTORY  OF  NEW   YORK 

and  in  1646  or  1647,  with  £38  Voor  dat  hij  hem  heeft  Lactten  begruijcken 
tot  scherp  Rcchter,  tcr  cxccutie  van  Justitie,  over  den  niisdadiger  Wolf 
Nijssen  (for  having  consented  to  act  as  executioner  to  carry  out  the  sen- 
tence upon  the  criminal,  Wolf  Nijssen).  O'Callaghan,  in  his  "History 
of  New  Netherland",  i :  320  and  441,  refers  to  him  as  the  hangman  of  the 
colony.  The  wording  of  the  entry  in  the  account  clearly  shows  that  no 
such  office  existed  and  that  the  execution  of  Wolf  Nijssen  was  an  excep- 
tional case,  in  which  the  negro  was  induced  to  serve." 

As  a  whole,  the  patroon  system  was  not  the  success  which  its 
promoteis  had  anticipated.  Eventually  serious  conflicts  devel- 
oped between  the  patroons  on  their  respective  manorial  properties 
and  the  West  India  Company  in  New  Amsterdam.  It  was 
impossible  that  two  such  colonizing  institutions  with  interests  of 
largely  contrary  character  and  each  possessing  administrative 
and  judicial  powers,  to  a  greater  or  less  extent  independent  of 
each  other,  should  long  live  in  perfect  accord.  Quarrels  between 
the  patroons  and  the  director  general  began  almost  at  once,  and 
later  on  during  the  administrations  of  Director  General  Kieft 
and  Director  General  Stuyvesant,  they  became  fruitful  sources 
of  trouble.  The  immediate  result  of  these  contentions  was  seen 
in  less  than  two  years.  Complaints  of  the  patroons  were  taken 
before  the  West  India  Company  and  the  States  General,  and,  in 
the  controversy  which  ensued,  blame  was  thrown  upon  Minuit, 
who  had  countenanced  and  confirmed  these  large  grants  of  land 
with  all  their  objectionable  features.  Therefore,  he  was  recalled, 
and  returning  to  Holland  early  in  1632,  his  administration  came 
to  an  end. 

Following  Minuit  as  director  general  came  Bastiaen  Jansz 
Krol,  or  Crol.  The  discovery  of  this  incumbency  of  Krol  is  of 
recent  origin.  All  earlier  historians  of  New  York  have  recorded 
Wouter  Van  Twiller  as  the  successor  of  Minuit..  It  appears  now, 
from  evidence  contained  in  the  "Van  Rensselaer  Bowier  Manu- 

23 


LEGAL   AND   JUDICIAL 

scripts,"-^  that  Krol  was  an  employee  of  Van  Rensselaer,  upon  the 
Rensselaer  manor,  and  in  a  letter  to  him  from  Amsterdam,  under 
date  of  July  20,  1632,  Killiaen  Van  Rensselaer  acknowledges  the 
receipt  of 

"your  favor  of  the January,  in  which  you  thank  me  that  I  helped 

to  promote  you  to  the  directorship,  which  I  did  with  pleasure.  However, 
though  new  lords  make  new  laws,  I  am  astonished  at  the  great  changes 
which  they  are  making,  inasmuch  as  they  summon  you  and  albert  ditering 
home  and  send  a  new  commis  to  Fort  Orange  *  *  *  although  they 
now  send  my  nephew  Wouttcr  there  as  director,  believe  me  freely  that 
he  has  not  tried  in  the  least  to  oust  you  from  your  office,  as  the  direc- 
tors have  offered  it  to  him  without  his  asking  for  it  and  without  my  speak- 
ing to  any  one  about  it  for  him."" 

Further  evidence  of  the  Krol  occupancy  of  the  director 
generalship  is  found  in  the  testimony  which  he  gave  in  an  exam- 
ination conducted,  at  the  request  of  the  patroons,  by  a  notary  in 
Amsterdam  June  30,  1634.  Upon  that  occasion,  answering  a 
question  as  to  "in  what  capacity  and  for  how  long  he  was  in  the 
service  of  the  West  India  Company  in  New  Netherland,"  he 
stated  that 

"After  he  had  been  away  about  15  months,  he  was  appointed  to  the 
directorship  at  Fort  Orange  on  the  North  River  and  held  the  same  for 
three  years.  The  third  time  he  went  out  again  as  director  of  Fort 
Orange,  and  to  the  best  of  his  recollection  served  again  for  about  two 
years.  After  which  he  was  elected  director  general  of  New  Netherland  at 
Fort  Amsterdam  on  the  island  Manhates,  lying  at  the  mouth  of  the  afore- 
said North  River,  also  named  Mauritius,  and  served  in  this  office  13 
months."* 

In  this  same  examination,  several  questions  propounded  by 


23.  "Van  Rensselaer  Bowier  Manuscripts",  being  the  letters  of  Kil- 
liaen Van  Rensselaer,  1630-1643,  and  other  documents  relating  to  the  colony 
of  Rensselaerwyck,  translated  and  edited  by  A.  J.  F.  Van  Laer,  Archivest, 
and  published  by  the  University  of  the  State  of  New  York  in  1908  as  a 
volume  of  the  New  York  State  Education  Department. 

24.  'Van  Rensselaer  Bowier  Manuscripts",  p.  217. 

25.  Ibid.,  p.  302. 

24 


HISTORY  OF  NEfr   YORK 

the  notary  evidenced  a  recognition  of  the  fact  of  Krol's  director 
generalship.  For  example:  "whether  in  1633,  while  he,  Crol, 
was  still  director  of  New  Netherland,"  etc. ;  "whether  he  was  not 
asked  by  his  successor,  the  new  director,  van  Twillcr,"  etc. ;  and 
"whether  the  director  Pieter  Minuit,  the  predecessor  of  Crol," 
etc.  It  appears,  therefore,  that  Krol  was  the  director  general  of 
New  Netherland  for  thirteen  months,  from  the  end  of  February 
or  the  beginning  of  March,  1632,  to  the  end  of  March,  1633.  The 
scant  references  here  quoted  are  all  that  have  been  discovered 
concerning  his  service  in  this  capacity. 

Following  Krol  came  Wouter  Van  Twiller,  of  Nieuwkerke, 
who  was  appointed  director  general  in  1633,  and  arrived  before 
Manhattan  Island  in  the  vessel  Southberg  (Salt  Mountain)  in 
April  of  the  same  year.  His  council  was  composed  of  four 
members ;  Jacob  Jansen  Hesse,  Martin  Gerritsen,  Andries  Hudde 
and  Jacques  Bentyn.  As  secretary  he  continued  in  office  Jan  Van 
Remund,  who  had  already  succeeded  Isaac  De  Rasieres,  the  first 
secretary  of  the  council  under  Minuit.  Cornelis  Van  Tienhoven 
was  appointed  to  assist  the  secretary  and  to  be  bookkeeper,  and 
Coenraed  Notelman  was  retained  as  schont-iiscal.  Subsequently, 
in  1634,  Lubbertus  Van  Dincklagen  succeded  Notelman  as  schout- 
fiscal.  He  was  a  physician  possessed  of  considerable  means,  and 
a  forceful  man  of  independence  and  authority.  He  did  not  long 
retain  the  favor  of  \'an  Twiller  and,  being  sent  back  to  Holland, 
was  succeeded  by  Ulrich  Lupoid,  a  Hanoverian  of  Staden. 

In  what  manner  judicial  proceedings  were  conducted  under 
the  first  three  directors  general  of  New  Netherland — Minuit, 
Krol  and  Van  Twiller — is  not  known.  It  is  uncertain  that  records 
were  kept  by  the  officials  of  Minuit,  but  presumably  they  may 
have  been.  Under  Van  Twiller,  records  of  transactions  were 
made  and  undoubtedly  were  included  in  the  voluminous  archives 

25 


LEGAL   AND  JUDICIAL 

of  the  West  India  Company ;  but  practically  all  those  papers  were 
lost  or  destroyed  early  in  the  nineteenth  century. 

Van  Twiller  was  no  more  successful  in  management  than  his 
predecessors  had  been.  His  incumbency  of  five  years  was  a 
record  of  blunders,  inexperience,  lack  of  energ}',  and  a  general 
incapacity  for  administration.  When  it  became  necessary  to 
recall  him,  the  Assembly  of  Nineteen  determined  to  send  out  a 
man  of  entirely  different  character.  Accordingly,  William  Kieft. 
who,  although  a  commercial  adventurer  of  ill  repute  and  once 
under  serious  charges  of  financial  dereliction  was  a  person  of 
determination  and  activity,  was  chosen.  He  arrived  in  the  bay 
before  the  city  of  New  Amsterdam,  March  28,  1638,  in  the  man- 
of-war  Haerring,  which  belonged  to  the  West  India  Company. 

Broad  authority  was  given  to  the  new  director  general,  and 
under  this  he  was  able  to  adopt  measures  which  placed  almost 
exclusively  in  his  own  hand  the  conduct  of  the  commercial  affairs 
of  the  West  India  Company  in  New  Amsterdam  and  throughout 
the  colony  and  also  the  administration  of  justice.  At  the  outset 
he  determined  to  have  no  divided  responsibility.  He  had  his  own 
ideas  of  the  policy  he  should  inaugurate  and  pursue,  and  he  would 
not  be  encumbered  officially  with  any  one  who  might  perchance 
oppose  him.  Instructions  from  the  Assembly  of  Nineteen  were 
that  he  should  maintain  a  council,  but  he  followed  this  instruction 
in  letter  only.  Lest  a  council  might  interfere  with  his  proposed 
rule,  he  restricted  that  body  to  one  person  beside  himself, 
choosing  John  De  la  Montague.  He  retained  two  votes  in  the 
council,  while  he  accorded  to  De  la  Montague  only  one  vote. 
Thus  his  absolute  control  was  complete.  De  la  Montague  was  a 
man  of  high  intelligence  and  decision  of  character.  He  was  a 
Huguenot  Protestant,  educated  as  a  physician.  Fleeing  from 
France  to  Holland  after  the  revocation  of  the  Edict  of  Nantes 

26 


HISTORY  OF  NEW   YORK 

he  had  come  to  New  Netherland  in  1637.  Notwithstanding  his 
character  and  abihty,  his  influence  amounted  to  little  in  his  incon- 
spicuous minority  of  one. 

For  provincial  secretary,  Cornelis  Van  Tienhoven  was 
appointed,  an  able  energetic  official  who  had  formerly  been  koop- 
man,  or  chief  commissary,  and  bookkeeper  of  the  company.  Ul- 
rich  Lupoid  was  appointed  schout-fiscal,  but  subsequently,  in 
1639,  he  was  replaced  by  Cornelis  Van  der  Huygens.  In  the 
hands  of  Kieft,  with  his  one  subordinate  on  the  council  and  his 
two  officials,  was  thus  concentrated  the  direction  of  the  com- 
pany's business,  the  management  of  the  municipal  and  colonial 
affairs,  and  full  legislative,  executive  and  judicial  powers.  As 
tlie  council  was  constituted,  this  meant  the  unrestricted  one-man 
power  of  the  director  general.  Outside  of  New  Amsterdam,  how- 
ever, his  authority  was  often  called  in  question  by  the  patroons, 
who  claimed  at  least  semi-independence  as  their  charter  right. 

Public  interests  had  suffered  so  greatly  during  the  admin- 
istration of  the  previous  director  general,  that  Kieft  was  con- 
fronted with  a  very  grave  condition  of  affairs.  The  company's 
employees  had  been  trading  in  furs  on  their  own  account,  instead 
of  attending  to  their  duties  and  observing  the  prescribed  regu- 
lations ;  smuggling  was  common ;  guns  and  ammunition  had 
been  furnished  to  the  Indians ;  the  town  was  in  a  disorderly  state, 
through  the  insubordination  of  soldiers  and  the  rioting  of  sailors 
and  citizens ;  drunkenness,  theft,  fighting  and  immoralities  gen- 
erally prevailed,  and  mutiny  and  homicides  were  not  infrequent. 
The  settlements  on  the  upper  Hudson  were  in  a  state  of  dis- 
content, while 'the  rights  of  the  Dutch  were  threatened  on  Long 
Island  and  in  Connecticut  to  the  north,  and  on  the  Delaware  Bay 
to  the  south. 

Severe  measures  of  repression  were  imperatively  needed  if 

27 


LEGAL   AND  JUDICIAL 

the  authority  of  the  West  India  Company  should  be  maintained. 
Kieft  did  not  hesitate,  but  began  to  rule  with  a  strong  hand. 
Giving  first  attention  to  affairs  in  New  Amsterdam,  he  issued 
proclamations  in  regard  to  the  company's  business,  the  proper 
conduct  of  the  townsfolk  and  the  legal  and  judicial  procedures 
under  the  Holland  law  which  controlled  the  colony.  But  his  dis- 
pensation of  justice  was  a  farce.  Vain,  rapacious  and  vindictive, 
he  availed  himself  to  the  utmost  of  his  administrative  and  judicial 
powers  to  advance  his  personal  interests,  and  to  repress  those 
who  ventured  in  the  slightest  degree  to  oppose  him.  His  council 
enacted  laws,  imposed  taxes,  and  inflicted  fines,  confiscations,  ban- 
ishments and  other  penalties  indiscriminately  upon  the  Indians 
or  upon  the  colonists,  as  the  director  desired.  All  civil  and  crim- 
inal questions  were  decided  without  jury,  that  institution  being 
as  yet  unknown.  He  directed  that  the  council  should  sit  every 
Thursday  as  a  court  of  justice  for  "the  hearing  and  adjudication 
of  all  civil  and  criminal  processes  and  for  the  redress  of  all 
grievances  of  which  any  one  might  have  to  complain;"  and  he 
established  certain  rules  for  securing  the  attendance  of  parties  in 
controversy  and  for  the  general  conduct  of  business. 

As  had  been  the  practice  under  the  preceding  directors,  the 
council  continued  the  general  administration  of  affairs  of  the 
company,  and  it  was  also  the  ordinary  court  of  justice  as  well  as 
the  final  court  of  appeal.  On  extraordinary  occasions,  other 
inhabitants  of  the  town  were  added  to  the  council  sitting  as  a 
court  when  it  was  necessary  to  take  under  consideration  questions 
of  special  character,  or  when  cases  came  up  in  which  perhaps 
some  members  of  the  council  might  be  personally  interested.  As 
an  historian  of  the  period  expressed  it:  "Whenever  anything 
extraordinary  occurred,  the  director  allowed  some  whom  it 
pleased  him — officers  of  the  company  for  the  most  part — to  be 

28 


HISTORY  OF  NEW   YORK 

summoned  in  addition,  but  that  seldom  happened."-^  Naturally 
the  persons  summoned  to  participate  in  court  proceedings  under 
these  conditions  did  little  more  than  echo  the  wishes  of  their 
superior,  the  director  general. 

From  the  outset  of  the  Kieft  regime  there  was  an  abundance 
of  court  activity.  Slowly  the  community  grew  somewhat  more 
orderly,  but  it  was  long  in  becoming  staid  and  law-abiding.  Begin- 
ning with  1638  the  records  of  the  proceedings  of  the  council  sit- 
ting as  a  court  of  justice  have  been  preserved.-'  They  throw 
interesting  sidelights  upon  the  life  of  the  infant  colony,  revealing 
as  they  do  the  offenses  most  prevalent,  and  the  manner  in  which 
justice  was  dispensed. 

Slander,  which  was  not  an  infrequent  offense,  was  punished 
by  fining  the  offender  and  ordering  a  public  retraction.  Assault 
was  generally  punished  by  fine,  but  sometimes,  in  serious  cases, 
an  added  punishment  was  imprisonment  on  a  diet  of  bread  and 
water.  Theft  was  punished  by  flogging  or  fining,  and  in  extreme 
cases  by  banishment.  Soldiers  and  sailors  who  mutinied  were 
shot,  and  sailors  who  deserted  were  posted  as  villains.  In  cases 
of  differences  between  individuals,  the  disposition  of  the  judges 
was  toward  a  settlement  out  of  court.  The  records  are  full  of 
instances  where  referees  or  arbitrators  were  appointed  to  examine 
accounts,  to  consider  questions,  and  to  determine  how  best  jus- 
tice should  be  done.  Generally  the  referees  or  arbitrators  were 
directed  to  try  to  reconcile  disputatious  individuals,  and  often,  in 
subsequent  sessions  of  the  court,  litigants  were  reported  to  have 
been  thus  reconciled.  Those  who  defaulted  in  appearing  at  the 
court  subjected  themselves  to  a  fine  of  one  shiUing  for  their  first 


26.  "The  Remonstrance  of  New  Netherland",  by  Adriaen  Van  der 
Donck. 

27.  "Albany  Records." 

29 


LEGAL   AND   JUDICIAL 

non-appearance;  when  they  did  not  appear  after  a  second  sum- 
mons, they  were  fined  two  shilHngs,  and  upon  a  third  default, 
judgment  was  entered  against  them. 

A  common  punishment  was  to  ride  the  wooden  horse,  and 
this  was  particularly  inflicted  upon  soldiers  for  minor  offenses. 
In  May,  1642,  Philip  Geraerdy,  a  soldier,  was  convicted  of  hav- 
ing been  absent  from  the  guard  without  leave,  and  was  sentenced 
to  ride  the  wooden  horse  during  parade,  with  a  pitcher  in  one 
hand  and  a  drawn  sword  in  the  other.  In  April,  1639,  Corporal 
Hans  Steen  was  found  guilty  of  fornication,  and  was  sentenced 
to  ride  three  hours  on  the  wooden  horse,  and  to  be  reduced  to 
the  ranks  for  fourteen  days.  In  December,  1638,  Hans  Schipper 
and  Jochcm  Beeckman,  soldiers  convicted  of  larceny,  were 
sentenced  to  sit  two  hours  each  on  the  wooden  horse.  In  July, 
1645,  Jan  Alleman,  a  soldier,  was  charged  before  the  court  with 
sending  to  Jan  De  Fries  a  challenge  to  fight  a  duel.  The  enor- 
mity of  the  offense  is  shown  by  the  memorandum  in  the  case, 
which  describes  Jan  De  Fries  as  being  bedridden.  The  soldier 
who  thus  valorously  challenged  a  bedridden  man  to  combat, 
acknowledged  the  offense,  and  was  sentenced  to  ride  the  wooden 
horse  and  be  cashiered. 

In  October,  1638,  Hendrick  Jansen  was  arraigned  "for  scan- 
dalizing the  governor" ;  he  was  sentenced  to  stand  at  the  entrance 
of  the  court  at  the  ringing  of  the  bell  which  summoned  offenders 
and  litigants,  and  there  to  ask  the  governor's  pardon.  In  July, 
1638,  Gysbert  Van  Beyerland  was  found  guilty  of  "drawing  his 
knife  upon  a  person,"  and  was  sentenced  "to  throw  himself  three 
times  from  the  sail-yard  of  the  yacht  Hope,  and  to  receive  from 
each  sailor  three  lashes  at  the  ringing  of  the  bell."  In  a  later 
year,  1647,  we  find  a  similar  punishment  inflicted,  but  with  an 
amplification  that  gave  it  an  additional  sting.    Andries  Trumpeter, 

30 


HISTORY  OF  NEW   YORK 

for  intoxication,  disobedience  of  orders  and  threatening  the  super- 
intendent of  naval  equipments,  was  sentenced  "to  jump  three 
times  from  the  yard-ann,  and  while  his  breech  is  still  wet,  to 
receive  one  hundred  lashes  from  the  crew." 

A  famous  slander  case  was  that  tried  in  October,  1638. 
Anthony  Janse,  from  Salee,  sometimes  called  "the  Turk,"  and 
thought  to  have  been  a  semi-Dutchman  from  Morocco,  was  the 
defendant  in  an  action  brought  by  the  fiscal,  because  his  wife 
Grietje  had  slandered  the  Reverend  Everadus  Bogardus.  Grietje 
was  sentenced  to  stand  in  the  fort  and  there  "publicly  to  declare, 
at  the  ringing  of  the  bell,  that  the  minister  is  an  honest  and  hon- 
orable man ;  to  acknowledge  that  she  lied,  and  to  pay  costs  and 
three  guilders  to  the  poor" ;  her  unfortunate  husband  Anthony 
was  bound  over  to  keep  the  peace  toward  Mr.  Bogardus,  and  to 
pay  a  fine  of  twelve  guilders.  Two  days  after  this  sentence  was 
imposed,  the  records  say  that  Grietje  appeared  in  court  "to  make 
her  confession,  begging  pardon  of  God,  the  court  and  the  min- 
ister, and  promising  to  comport  herself  in  future  so  as  to  satisfy 
the  authorities." 

This  Anthony  Jansen  and  his  wife  seemed  to  be  well-nigh 
the  most  troublesome  people  of  the  place  at  this  time.  They  were 
repeatedly  brought  before  the  court  for  violation  of  municipal 
ordinances  or  offences  against  their  neighbors,  and  the  names  of 
no  other  citizens  of  New  Amsterdam  appear  so  frequently  in  the 
record  of  court  proceedings  in  1638  and  1639.  Among  the 
offences  with  which  one  or  the  other  of  this  law-violating  couple 
were  charged  were  stealing  hogs,  improper  conduct,  immodest 
language,  and  slander ;  the  last  named  offence  seemed  to  be 
habitual  with  them,  for  in  one  session  of  the  court  there  were 
no  less  than  four  charges  of  the  kind  against  them.  Anthony 
was  sued  for  debt  repeatedly,  and  for  non-fulfillment  of  contracts. 

31 


LEGAL   AND   JUDICIAL 

Finally,  on  April  7,  1639,  the  husband  and  wife  were  arraigned 
as  public  disturbers  and  slanderers,  and  sentenced  to  pay  costs 
of  court  and  be  forever  banished  from  New  Netherland.  Even 
after  that  date,  Anthony  was  sued  for  debt,  and  the  plaintiff 
pleaded  that  he  should  not  be  permitted  to  banish  himself  from 
New  Netherland  until  the  indebtedness  had  been  settled. 

In  June,  1646,  Jan  Creoli,  a  negro,  was  convicted  of  sodomy, 
a  second  offence.  "This  crime",  so  says  the  record,  "being  con- 
demned of  God  (Gen.  c.  19;  Levitt,  c.  18;  22:29)  as  an  abomin- 
ation," he  was  sentenced  to  be  conveyed  to  the  place  of  public 
execution  and  there  choked  to  death  and  then  burned  to  ashes. 
In  November,  1644,  Symon  Volvertsen,  who  was  convicted  of 
theft,  a  second  offence,  was  sentenced  "to  be  conveyed  to  the 
place  of  public  execution  and  there  flogged  as  an  example  and 
terror  to  evil-doers,  and  then  banished." 

An  instance  of  a  somewhat  original  method  of  justice  was 
in  January,  1641,  when  eight  negroes — Clein  Antonio  Paulo  d' 
Angola,  Gracia  d'  Angola,  Jan  of  Fort  Orange,  Manuel  de  Gerrit, 
the  giant,  Anthony  Portuguese,  Manuel  Minuet,  Simon  Congo, 
and  Manuel  the  Great — were  tried  for  killing  Jan  Promero, 
another  negro.  All  the  accused  pleaded  guilty,  and  the  sentence 
was  that  they  should  draw  lots  to  determine  "who  should  be  pun- 
ished with  the  cord  until  death,  praying  the  Almighty  God,  the 
Creator  of  Heaven  and  Earth,  to  direct  that  the  lot  may  fall  on 
the  guiltiest,  whereupon  the  lot  fell,  by  God's  Providence,  on 
Manuel  de  Gerrit,  the  Giant."  The  murderer  thus  selected  for 
punishment  was  remanded  for  sentence,  and  at  the  next  session 
of  the  court  he  was  accordingly  "sentenced  to  be  hanged  by  the 
neck  until  dead,  as  an  example  to  all  such  malefactors."  In  the 
records  of  the  council  it  is  further  set  forth  that  upon  the  day  of 
execution  the  hangman  "turned  off  the  ladder  the  above  negro", 

Z2 


HISTORY  OF  NEW   YORK 

who  had  two  strong  halters  around  his  neck.  Both  the  halters 
broke,  and  the  condemned  man  fell  to  the  ground,  "whereupon 
all  the  by-standers  called  out  mercy,  which  was  accordingly 
granted" ;  and  so  he,  upon  whom  "by  God's  Providence"  the  lot 
had  fallen,  went  free. 

In  November,  1641,  Jan  Hobbesen,  accused  of  stealing  a  sheet 
from  a  bed  in  the  city  tavern,  pleaded  intoxication,  and  said  that 
he  knew  nothing  about  the  matter.  The  case  was  postponed  in 
order  to  give  the  prisoner  a  chance  to  confess,  but  on  the  next 
court  day  he  still  persisted  in  denying  the  charge.  And  then, 
so  the  record  says,  he  was  put  to  torture,  whereupon  he  con- 
fessed his  guilt.  He  was  sentenced  to  be  taken  to  the  place  of 
public  execution  and  there  to  be  whipped  with  rods,  "immediately 
after  which  he  is  to  remove  himself  beyond  the  limits  of  New 
Netherland,  on  pain,  if  found  again  in  the  country,  to  be  put  in 
chains  and  set  to  work  with  the  company's  negroes." 

In  August,  1638,  Jan  Gysbeertsen,  of  Rotterdam,  and  Gerrit 
Jansen,  engaged  in  a  fight  with  knives  outside  the  gate  of  the 
fort.  In  this  encounter  Gerrit  Jansen  was  killed,  but  his  mur- 
derer escaped.  In  the  September  following,  the  murderer,  who 
had  not  yet  been  found,  was  tried  and  sentenced,  whenever  appre- 
hended, to  be  punished  "by  sword  until  dead,  his  property  confis- 
cated, and  his  wages  paid,  one-half  to  the  widow  or  heirs  of  the 
deceased,  one-fourth  to  the  company,  and  the  remainder  to  the 
prosecutor." 

In  October,  1639,  Andries  Hudde  brought  an  action  against 
David  Provoost  for  the  fulfillment  of  a  contract  to  sell  a  yawl, 
and  the  court  ordered  that  "the  present  owner  of  the  boat  should 
ferry  the  defendant  next  winter  across  the  East  River  and  back." 
In  June,  1645,  William  Gerritsen  who,  according  to  the  record, 
was  an  Englishman,  was  convicted  of  libeling  the  Reverend  Fran- 

33 


LEGAL  AND  JUDICIAL 

CIS  Doughty,  the  EngHsh  clergyman  of  Flushing.  The  libel  con- 
sisted of  singing  a  defamatory  song  against  the  plaintiff  and  his 
daughter.  Pleading  guilty,  Gerritsen  was  sentenced  to  stand 
bound  to  the  maypole  in  the  fort,  with  two  rods  around  his  neck 
and  the  libel  over  his  head,  until  the  conclusion  of  the  English 
sermon ;  "and  should  he  ever  sing  the  song  again,  to  be  flogged 
and  banished." 

But  Kieft  had  more  serious  troubles  to  meet  than  the  griev- 
ances of  quarreling  neighbors  and  the  small  moral  infractions  of 
a  frontier  community.  Scarcely  had  he  settled  himself  firmly  in 
his  new  position  than  grave  questions  of  government  pressed 
for  solution.  From  the  very  beginning  of  the  patroonships,  dif- 
ferences had  existed  between  the  representatives  of  the  patroons 
on  their  several  estates  and  the  authorities  in  New  Amsterdam. 
These  differences  rapidly  grew  in  importance,  and  as  early  as 
1638  the  patroons  demanded  from  the  West  India  Company  larger 
privileges  than  had  been  at  first  granted  to  them.  Before  this 
time  the  directors  of  the  company  had  purchased  from  several 
of  the  patroons  the  landed  properties  which  they  had  acquired 
under  the  Charter  of  Freedoms  and  Exemptions  in  the  time  of 
Minuit,  but  the  issue  had  not  been  wholly  met  by  this  move. 
Rensselaerwyck  was  the  one  manorial  property  which  had  pros- 
pered, but  others  were  still  feebly  maintained.  This  continued 
agitation  for  wider  oportunities  and  more  privileges  for  the 
patroons  and  for  other  colonists,  resulted  in  a  new  Charter  of 
Freedoms  and  Exemptions,  which  was  adopted  by  the  Assembly 
of  Nineteen  in  July,  1640.^  This  charter  was  particularly 
designed  to  encourage  emigration,  and  to  settle  and  develop  the 


28.  "History  of  Westchester  County",  by  J.  T.  Scharf,  vol.  I,  pp.  54- 
55 ;  "Documents  Relative  to  the  Colonial  History  of  the  State  of  New 
York",  vol.  I,  p.  120. 

34 


HISTORY  OF  NEW   YORK 

country  about  New  Amsterdam  as  well  as  to  increase  the  trade 
with  the  Indians.     It  provided  that: 

"The  Company  shall,  accordingly,  appoint  and  keep  there  a  Governor, 
competent  Councillors,  Officers  and  other  Ministers  of  Justice  for  the  pro- 
tection of  the  good  and  punishment  of  the  wicked ;  which  Governor  and 
Councillors,  who  are  now,  or  may  be  hereafter  appointed  by  the  Company, 
shall  take  cognizance,  in  the  first  instance,  of  matters  appertaining  to  the 
freedom,  supremacy,  domain,  finance  and  rights  of  the  General  West 
India  Company;  of  complaints  which  any  one  (whether  stranger,  neigh- 
bor or  inhabitant  of  the  aforesaid  country)  may  take  in  case  of  privilege, 
innovation,  desuetude,  customs,  usages,  laws  or  pedigrees ;  declare  the 
same  corrupt  or  abolish  them  as  bad,  if  circumstances  so  demand;  of 
the  cases  of  minor  children,  widows,  orphans  and  other  unfortunate  per- 
sons, regarding  whom  complaint  shall  first  be  made  to  the  Council  hold- 
ing prerogative  jurisdiction  in  order  to  obtain  justice  there ;  of  all  con- 
tracts or  obligations;  of  matters  pertaining  to  possession  of  benefices, 
fiefs,  cases  of  Icsae  majestatis,  of  religion  and  all  criminal  matters  and 
excesses  prescribed  and  unchallenged,  and  all  persons  by  prevention 
may  receive  acquittance  from  matters  there  complained  of;  and  gen- 
erally take  cognizance  of,  and  administer  law  and  justice  in  all  cases 
appertaining  to  the  supremacy  of  the  company."^ 

As  regards  the  administration  of  justice  by  the  patroons  the 
charter  provided : 

"And  should  any  Patroon,  in  the  course  of  time,  happen  to  prosper 
in  his  Colonic  to  such  a  degree  as  to  be  able  to  found  one  or  more  towns, 
he  shall  have  the  authority  to  appoint  officers  and  magistrates  there,  and 
make  use  of  the  title  of  his  Colonic,  according  to  the  pleasure  and  the 
quality  of  the  persons,  all  saving  the  Company's  regalia. 

"And  should  it  happen  that  the  dwelling  places  of  private  Colonists 
become  so  numerous  as  to  be  accounted  towns,  villages  or  cities,  the 
Company  shall  give  orders  respecting  the  subaltern  government,  magis- 
trates and  ministers  of  justice,  who  shall  be  nominated  by  the  said  towns 
and  villages  in  a  triple  number  of  the  best  qualified,  from  which  a  choice 
and  selection  is  to  be  made  by  the  Governor  and  Council ;  and  those  shall 
determine  all  questions  and  suits  within  their  district*" 


29.  "Documents   Relative   to   the   Colonial   History  of   the   State   of 
New  York",  vol.  I,  p.  123. 

30.  "Documents   Relative   to   the   Colonial  History    of   the    State    of 
New  York",  vol.  I,  p.  120. 

35 


LEGAL   AND   JUDICIAL 

"From  all  definitive  judgments  pronounced  by  the  Courts  of  the 
Patroons  or  Colonists,  for  an  amount  exceeding  one  hundred  guilders,  or 
from  such  as  entail  infamy,  also  from  all  sentences  pronounced  in  matters 
criminal,  on  ordinary  prosecution,  conformable  to  the  custom  of  this  coun- 
try, an  appeal  shall  lie  to  the  Governor  and  Council  of  the  compan\^  in 
New  Netherland."" 

That  Kieft's  director  generalship  should  result  in  practical 
failure,  both  as  regarded  the  financial  success  of  the  company 
which  he  represented  and  the  improvement  of  tlie  condition  of 
the  colony,  was  from  the  outset  a  foregone  conclusion.  His  posi- 
tion was  difficult,  and  it  was  soon  apparent  that,  despite  his  nat- 
ural ability,  he  was  ill-fitted  to  solve  the  problems  left  to  him  by 
his  predecessors  and  the  new  ones  that  were  continually  arising 
to  plague  him.  His  arbitrary  methods  and  his  general  bad  judg- 
ment in  dealing  with  the  situation  made  the  colonists  more  and 
more  dissatisfied  with  the  condition  of  affairs  in  which  they  were 
placed,  and  with  the  burdens  which  they  were  compelled  to 
endure.  Only  a  few  years  removed  from  their  native  Holland, 
the  settlers  had  not  yet  had  time  to  forget  the  privileges  and 
freedoms  which  they  and  their  fathers  had  long  enjoyed  on  the 
other  side  of  the  Atlantic.  They  chafed  under  the  imperious 
manners  of  the  director  general,  who,  although  without  royal 
rank  or  prestige,  assumed  more  authority  and  inflicted  more  hard- 
ships upon  those  over  whom  he  had  been  placed  temporarily,  than 
would  a  king  or  emperor  in  their  former  home.  Naturally  they 
resented  this,  and  as  time  went  on  and  no  signs  of  a  change  of 
heart  in  their  master  were  manifest,  they  became  more  and  more 
determined  than  ever  before  to  assert  themselves  and  to  demand 
what  they  considered  were  their  rights  as  citizens.  The  move- 
ment for  popular  representation  in  the  control  of  colonial  affairs 


31.     "Documents   Relative   to   the   Colonial   History  of   the   State   of 
New  York",  vol.  I,  p.  122. 

36 


HISTORY  OF  NEW   YORK 

had  already  manifested  itself  in  the  time  of  Van  Twiller,  and 
now  under  Kieft  it  came  stronger  than  ever  to  the  front  as  the 
great  issue  of  the  moment  between  the  colonists  and  the  gov- 
ernor. Month  by  month  Kieft  grew  in  unpopularity,  while  the 
protests  of  the  people  against  him  increased  and  their  demands  to 
participate  in  the  government  were  more  and  more  insistent. 

Finally  opportunity  came  to  the  people  in  1641.  Trouble 
with  the  savages  had  been  gradually  increasing,  especially  with 
the  Raritan  Indians  on  Staten  Island,  and  the  murder  of  a  wheel- 
right  named  Class  Cornelissen  Smiths,  or  Switz,  brought  the 
crisis.  Kieft  determined  to  wreak  vengeance  upon  the  Indians, 
but,  having  some  doubt  concerning  the  wisdom  and  the  outcome 
of  such  a  venture,  he  wished  to  place  the  resp>onsibility  for  a 
possible  disaster  upon  the  community  of  New  Amsterdam  instead 
of  taking  it  entirely  upon  himself.  Accordingly  he  called  upon 
the  heads  of  families  to  select  twelve  representatives  to  confer 
with  him  in  regard  to  the  matter.  These  twelve  men  were: 
David  Pietersen  de  Vries,  chosen  president  by  his  associates ; 
Jacques  Bentyn,  Maryn  Adriaensen,  Jan  Jansen  Damen,  Hen- 
drick  Jansen,  Jacob  Stoffelsen,  Abram  Pietersen  Molenaar,  Fred- 
erick Lubbertsen,  Jochem  Pietersen  Kuyter,  Gerrit  Dircksen, 
Joris  Rapelje  and  Abram  Planck.  They  were  residents  of  Man- 
hattan, Pavonia,  Long  Island  and  Staten  Island. 

The  Twelve  Men — who  constituted  the  first  popular  repre- 
sentative body  of  New  Netherland — gave  their  approval  to  a 
campaign  against  the  Indians.  They  also  availed  themselves  of 
the  opening  afforded  them  by  their  election  as  a  representative 
body,  to  make  demands  on  the  governor  for  those  reforms  in  the 
administration  of  the  affairs  of  the  community  which  the  people, 
as  a  whole,  had  long  desired.  Particularly  were  they  insistent 
that  courts  of  justice  similar  to  those  which  existed  in  the  towns 

37 


LEGAL   AND   JUDICIAL 

and  villages  of  Holland — boards  of  schepens,  or  magistrates — 
should  be  established.  They  also  asked  that  the  membership  of 
the  council  should  be  increased  to  at  least  five ;  they  registered 
their  decided  disapproval  of  the  practice  of  summoning  "the 
common  people,"  that  is  the  servants  and  employees  of  the  com- 
pany, to  the  bench  ;  finally,  they  demanded  that  the  director  of 
the  council  should  not  sit  in  judgment  unless  five  of  the  council 
were  presiding  in  the  court. 

These  were  bold  representations,  but  Kieft  promptly  dis- 
posed of  them.  He  denied  that  the  "common  people"  on  the 
bench,  even  though  they  were  servants  of  the  company,  were 
ever  guilty  of  unrighteous  judgments,  and  he  consented  to  add 
four  members  to  the  council,  saying  that  he  had  already  decided 
on  that  move.  Then,  in  an  order  as  brusque  as  it  was  brief,  he 
proceeded  to  dissolve  the  body  of  Twelve  Men,  February  8,  1642 : 

"And  whereas  the  Commonalty  at  our  request  appointed  and  in- 
structed these  12  men  to  communicate  their  good  council  and  advice  in 
the  subject  of  the  murder  of  the  late  Claes  Cornelissen  Swits,  which  was 
committed  by  the  Indians ;  this  being  now  completed  by  them,  we  do  hereby 
tliank  them  for  the  trouble  they  have  taken,  and  shall  with  God's  help 
make  use  of  their  rendered  written  advice  in  its  own  time.  The  said 
Twelve  men  shall  now,  henceforth  hold  no  further  meetings,  as  the  same 
tends  to  a  dangerous  consequence,  and  to  the  great  injury  both  of  the 
country  and  of  our  authority.  VVe,  therefore,  hereby  forbid  them  calling 
any  manner  of  assemblage  or  meeting,  except  by  our  express  order,  on  pain 
of  being  punished  as  disobedient  subjects.'"^ 

As  soon  as  the  Twelve  Men  had  dropped  back  to  common 
citizenship,  everything  reverted  to  its  former  condition.  Kieft  did 
not  keep  his  promise  to  increase  the  membership  of  the  council, 
nor  did  he  give  the  citizens  representation  in  the  administration 
of  judicial  affairs.  Difficulties  with  the  Indians  continued,  and 
were   the   most   disturbing   element   in   the   life   of   the   colony. 


32.     "Documents   Relative   to   the   Colonial   History   of  the    State   of 
New  York",  vol.  I,  p.  203. 

38 


HISTORY   OF  NEW   YORK 

Then,  for  a  second  time,  it  was  Indian  warfare  which  brought 
Kieft  to  the  imperative  necessity  of  caUing  upon  his  townsmen  to 
help  him  out  of  the  trouble  which  his  rashness  and  folly  in  dealing 
with  the  aborigines  had  brought  upon  the  community.  In  1644, 
after  his  fatuous  massacre  of  the  Indians  at  Pavonia  and  on  Long 
Island,  he  again  convoked  the  community  into  an  assembly  to 
plan  for  the  common  protection.  Again  the  citizens  met,  and  this 
time  they  selected  a  board  of  Eight  Men.  These  Eight  Men 
were:  Jochem  Pietersen  Kuyter,  Jan  Jansen  Damen,  Barent 
Dircksen,  Abraham  Pietersen,  Isaac  AUerton,  Thomas  Hall, 
Gerrit  Wolfertsen  and  Cornelis  Melyn.  Jan  Jansen  Damen  was 
excluded  by  his  associates  for  his  connection  with  the  Pavonia 
massacre,  and  Jan  Evertsen  Bout  was  chosen  in  his  place. 

The  Eight  ]Men  agreed  that  the  common  interests  demanded 
that  strong  measures  should  be  taken  to  repress  the  savages.  But 
they  felt  little  disposed  to  assist  the  director-general  further  than 
was  absolutely  imperative  for  the  protection  of  the  community. 
Kieft's  unpopularity  had  become  so  decided  that  it  was  generally 
felt  that  no  improvement  in  the  condition  of  affairs  could  be 
expected  from  him.  Accordingly,  the  Eight  Men,  quite  ignoring 
their  superior,  appealed  directly  to  the  Assembly  of  Nineteen  of 
the  West  India  Company,  and  also  forwarded  a  memorial  to  the 
States  General  of  Holland.  In  this  action  they  were  led  by  their 
president,  Cornelis  Melyn,  the  patroon  of  Staten  Island,  who  with 
the  memorial  sent  a  letter  giving  his  version  of  affairs  of  the 
colony.  In  the  memorial  the  Eight  Men  presented  a  gloomy 
picture  of  their  condition.  They  recited  the  former  peaceable 
and  friendly  attitude  of  the  Indians  during  the  administration  of 
\'an  Twiller,  and  then  proceeded  to  say  that : 

"The  director  hath  by  various  uncalled  for  proceedings,  from  time  to 
time,  so  estranged  these  from  us,  and  so  embittered  against  the  Dutch  na- 

39 


LEGAL   AND   JUDICIAL 

tion,  that  we  do  not  believe  any  thing  will  bring  them  back,  unless  that  the 
Lord,  who  bends  all  men's  hearts  to  his  will,  propitiate  them.  Thus  hath 
the  Antient  very  truly  observed;  'Any  man  can  create  turmoil,  and  set  the 
people  one  against  the  other;  but  to  establish  harmony  again,  is  in  the 
power  of  God  alone.' " 

The  memorial  further  stated  that  although  a  temporary  and 
illusory  peace  had  been  patched  up,  the  savages  continually 
attacked  settlers,  at  times  not  a  thousand  paces  from  the  fort ; 
that  the  company's  farms  were  in  danger  of  being  laid  waste ;  that 
nothing  had  been  done  recently,  even  since  the  arrival  of  the 
immigrants  and  soldiers  from  Brazil  and  that  everything  was 
going  to  ruin.     The  memorial  concluded  with  this  appeal : 

"Honored  Lords !  This  is  what  we  have,  in  the  sorrow  of  our  hearts 
to  complain  of;  That  one  man,  who  has  been  sent  out,  sworn  and  in- 
structed by  his  Lords  and  masters,  to  whom  he  is  responsible,  should  dis- 
pose here  of  our  lives  and  properties  at  his  will  and  pleasure,  in  a  man- 
ner so  arbitrary  that  a  King  dare  not  legally  do  the  like.  We  shall  termi- 
nate here  and  commit  the  matter  wholly  to  our  God;  who  we  pray  and 
heartily  trust,  will  move  your  hearts  and  bless  your  deliberations;  so  that 
one  of  these  two  things  may  happen ;  that  a  governor  may  be  speedily  sent 
with  a  beloved  peace  to  us ;  or,  that  your  Honors  will  be  pleased  to  permit 
us  to  return  with  wives  and  children  to  our  dear  Fatherland.  For  it  is 
impossible  ever  to  settle  this  country  until  a  different  system  be  intro- 
duced here  and  a  new  Governor  sent  out  with  more  people,  who  will  set- 
tle themselves  in  suitable  places,  one  near  the  other,  in  form  of  villages 
and  hamlets,  and  elect,  from  among  themselves,  a  BailiflF,  or  schout,  and 
schepens,  who  will  be  empowered  to  send  their  deputies  and  give  their 
votes  on  public  affairs  with  the  Director  and  Council;  so  that  the  entire 
country  may  not  be  hereafter  at  the  whim  of  one  man  again  reduced  to 
a  similar  danger."" 

In  the  concluding  demand  for  the  privilege  of  electing  a 
schout  and  schepens  was  the  first  full  and  definite  expression  of 
a  popular  desire  in  the  colony  that  was  to  find  fruition  a  few 


33.    "Documents   Relative   to   the   Colonial   History   of   the   State   of 
New  York",  vol.  I,   ("Holland  Documents",  HI)   p.  213. 

40 


HISTORY  OF  NEJF   YORK 

years  later  under  another  governor.  It  voiced  the  feeHng  of  the 
colonists  that  the  law  as  administered  by  the  director  general  and 
his  council  was  the  controlling  power  of  their  bondage  and 
oppression,  and  that  transferred  to  their  hands  it  would  be  the 
instrument  of  freedom.  The  judicial  and  municipal  tribunals 
which  they  demanded  were  similar  to  those  which  they  had 
enjoyed  at  home  as  citizens  of  Holland.  In  every  town  and 
village  in  Holland  the  institution  to  which  they  referred  had 
existed  for  more  than  a  century. 

"It  was  a  local  tribunal  of  a  highly  popular  character.  It  united  the 
two-fold  functions  of  a  court  of  justice  and  of  a  municipal  government, 
and  consisted  of  a  bench  of  magistrates,  denominated  burgomaster  and 
schepens,  with  whom  were  associated  a  schout,  whose  especial  duty  it  was 
to  prosecute  all  offenders  before  the  court,  and  to  carry  into  execution  its 
resolves  or  decrees.  The  burgomaster  was  a  kind  of  mayor.  The  schcpen 
resembled  an  alderman,  and  the  schout  performed  the  duties  which,  under 
our  system  are  respectively  assigned  to  sheriffs  and  district  attorneys.  The 
principle  of  popular  representation  was  recognized  in  the  composition  of 
this  body.  The  mode  of  appointment  was  not  uniform  throughout  Hol- 
land; but  generally  the  inhabitants  of  the  town  were  possessed  of  a  cer- 
tain property  qualification;  assembled  annually  in  a  town  council  of 
vrocdschap,  and  elected  eight  or  nine  'good  men',  and  this  representative 
body  chose  the  burgomaster  and  schepens.  The  schout,  under  tlie  feudal 
law  was  appointed  by  the  court  or  manorial  Lord,  though  in  certain 
places,  as  in  the  city  of  Amsterdam,  he  was  chosen  by  the  burgomaster  and 
schepens.'"* 

When  these  memorials  to  the  States  General  and  the  W'est 
India  Company  arrived  in  Holland,  they  occasioned  deep  con- 
cern. By  this  time  the  West  India  Company  had  become  prac- 
tically bankrupt,  and  it  now  asked  for  a  subsidy  in  order  that  the 
colony  should  be  placed  in  a  safe  and  prosperous  condition.  It 
was  even  seriously  considered  whether  it  would  not  be  best  to 
transport  the  colonists  in  a  body  back  to  the  Fatherland,  and 


34.    "Historical  Sketch  of  the  Judicial  Tribunals  of  New  York,  from 
1623  to  1846,"  by  Charles  P.  Daly,  p.  7. 

41 


LEGAL   AND   JUDICIAL 

altogether  abandon  an  unprofitable  enterprise.  But  other  advice 
finally  prevailed.  After  due  consideration,  it  was  determined  that 
a  change  must  be  made  in  the  government  of  New  Netherland. 
Provisionally,  Lubbertus  Van  Dincklagen,  who  had  been  the 
schout-fiscal  under  \'an  Twiller  until  he  had  been  banished  to 
return  to  Holland,  was  appointed  director  general  in  place  of 
Kieft.  Van  Dincklagen  did  not  leave  Holland,  however,  to  take 
physical  charge  of  the  colony ;  presently  his  appointment  was 
revoked,  and  General  Petrus  Stuyvesant  was  appointed  to  be  his 
successor. 


42 


Peter  Stuyvesant 


r-So5l  ) 

bnr,!r  ri  ^o  (BianaD  loJosiiQ  rlofiiQ 


PETER  STUYVESANT. 

(1602-1682). 

Dutch  Director  General  of  New  Netherland,  1047-64. 


CHAPTER  II 
Under  the  Rule  of  Stuyvesant 


i 


CHAPTER  II 

Under  the  Rule  of  Stuyvesant 

1645 — 1664 

LAWS    AND    ORDINANCES    ARE    PROCLAIMED THE    BOARD    OF    NINE 

MEN  AND  THEIR  JUDICIAL  FUNCTIONS — INSTITUTING  THE 
COURT  OF  BURGOMASTERS  AND  SCHEPENS — MEETING  OF  THE 
FIRST  POPULAR  LAW  COURT  OF  NEW  NETHERLAND  IN  THE 
STADT-HUYS  OF  NEW  AMSTERDAM — FORMS  OF  LEGAL  PRO- 
CEDURE, INSTRUCTIONS  TO  THE  JAILOR,  AND  THE  FIRST  FEE 
BILL — SOME  TYPICAL  COURT  CASES — LOCAL  COURTS  IN  OTHER 
TOWNS  OF  THE  COLONY. 

Although  the  appointment  of  Stuyvesant  had  been  deter- 
mined upon  in  1645,  ^"d  instructions  were  issued  to  him  by  the 
Assembly  of  Nineteen  in  July  of  that  year,  his  commission  from 
the  States  General  was  not  dated  until  fully  twelve  months  later, 
July  28,  1646.  Even  then  he  did  not  immediately  leave  for  New 
Netherland,  but  delayed  until  the  spring  of  the  following  year, 
and  meantime  Kieft,  despite  his  unpopularity,  held  over  as  direc- 
tor. 

The  new  director  general  sailed  from  the  Texel  on  Christ- 
mas Day,  1646.  Arriving  at  New  Amsterdam,  May  27,  1647,  he 
entered  at  once  upon  the  duties  of  his  office.  In  the  commission 
issued  to  him  by  the  States  General  he  was  particularly  charged 

"To  attend  carefully  to  the  advancement,  promotion  and  preservation 
of  friendship,  alliances,  trade  and  commerce;  to  direct  all  matters  relat- 
ing to  traffic  and  war,  and  to  maintain  in  good  order  ever}^hing  there  for 
the  service  of  the  United  Netherlands  and  the  General  West  India  Com- 

45 


LEGAL   AND   JUDICIAL 

panj-;    to   establish   regularity   for   the   security   of   the   places   and    forts 
therein;  and  to  administer  law  and  justice  as  well  civil  as  criminal.'" 

His  instructions  from  the  Assembly  included  directions  "to 
pacify  the  Indians,"  and  "first  of  all  to  establish  the  colonists 
and  freemen  on  the  Island  of  Manhattan  and  grant  them  as  much 
land  as  they  shall  be  able  to  cultivate."  It  was  calculated  that 
in  the  discharge  of  his  duties  he  would  be  absent  in  the  West 
Indies  at  some  time.  For  this  reason,  and  also  because  the  West 
India  Company  had  finally  come  to  the  conclusion  to  establish 
a  court  in  New  Netherland,  it  was  necessary  that  he  should  have 
capable  assistance  in  his  council.  Accordingly,  a  vice-director, 
Lubbertus  Van  Dincklagen,  and  a  fiscal,  Hendrick  Van  Dyck, 
were  appointed  to  accompany  him,  the  latter  to  have  a  seat  but 
no  vote  at  the  council  board.  Other  members  of  his  council  were 
Captain  Bryan  Newton,  Johannes  De  la  Montague,  who  was 
retained  as  councilor;  and  Cornells  Van  Tienhoven,  who  was 
the  provincial  secretary.  George  Baxter,  who,  since  1642,  had 
been  the  English  secretary  of  the  preceding  director  general,  was 
continued,  for  the  very  important  reason  that  "none  of  the  com- 
pany's officers  could  tolerably  read  or  write  the  English  language." 
This  equipment  was  rather  necessary,  inasmuch  as  the  colony 
had  English  neighbors  in  New  England  and  English  settlements 
on  its  Long  Island  territory. 

The  first  serious  trouble  which  Stuyvesant  was  compelled  to 
face  was  the  settlement  of  the  quarrel  between  Kieft  and  the 
commonalty.  For  some  time  after  his  successor  arrived,  the 
deposed  director  general  remained  in  New  Amsterdam  and  con- 
tinued to  be  a  disturbing  element  in  the  community.  Resentful 
to  the  last,  he  still  pursued  those  who  had  dared  to  lead  the  attack 


I.     "Documents  Relative  to  the  Colonial  History  of  the  State  of  New 
York,"  by  E.  B.  O'Callaghan,  M.  D.,  LL.D.,  vol.  I,  p.  178. 

46 


HISTORY  OF  NEW   YORK 

against  his  authority  and  had  been  instrumental  in  accomplishing 
his  removal.  Cornelis  Melyn  and  Joachim  Pietersen  Kuyter, 
members  of  the  Board  of  Eight  IMen,  brought  charges  against  him 
for  maladministration  of  his  office  and  injustice  done  to  the 
people. 

But  Stuyvesant  took  the  part  of  his  predecessor,  and  in  the 
end  the  tables  were  turned.  Upon  trial,  the  accusers  were  held 
to  be  guilty  of  grave  offense  for  presuming  to  attack  one  in 
authority  over  them.  Melyn  was  condemned  to  be  banished  for 
seven  years,  to  pay  a  fine  of  three  hundred  guilders,  and  to  for- 
feit all  benefits  which  he  might  be  entitled  to  derive  from  the 
company.  Kuyter  was  condemned  to  three  years'  banishment, 
and  to  pay  a  fine  of  one  hundred  and  fifty  guilders. 

With  his  character  thus  partly  restored,  Kieft,  for  the 
moment  triumphant  over  his  enemies,  set  sail  from  New  Amster- 
dam for  Holland  in  the  ship  Princess,  August  i6,  1647.  With 
him  was  his  old  antagonist,  the  Reverend  Everadus  Bogardus ; 
Cornelis  Van  der  Huygens,  the  late  sellout- fiscal;  and  Melyn 
and  Kuyter.  The  vessel  was  wrecked  on  the  coast  of  Wales, 
and  Kieft,  Bogardus,  Van  der  Huygens  and  others  were  drowned. 
Kuyter  and  Melyn  with  their  papers  were  rescued,  and,  reaching 
Holland  again,  they  very  soon  played  important  parts  in  the 
work  of  gradually  securing  a  measure  of  popular  government 
for  New  Netherland. 

Without  much  delay  Stuyvesant  proceeded  to  reorganize  the 
court  of  justice  which  was  already  in  existence  as  part  of  the 
council.  Of  this  court  the  vice-director,  Van  Dincklagen,  was 
appointed  presiding  judge,  and  from  time  to  time,  as  occasions 
required,  others  of  the  company's  officers  were  associated  with 
him.  This  new  tribunal  was  empowered  to  make  decision  in  all 
cases  which  came  before  it,  subject  only  to  the  obligation  of  ask- 

47 


LEGAL   AND   JUDICIAL 

ing  the  opinion  of  the  director  general  upon  questions  of  great 
importance.  The  director  general  reserved  to  himself  the  privi- 
lege of  presiding  in  the  court  whenever  he  thought  that  was 
necessary,  and  this  privilege  he  frequently  exercised.  The  court 
had  charge  of  the  enforcement  of  laws  governing  the  municipality 
and  colony,  as  well  as  the  commercial  affairs  of  the  company  so 
far  as  violations  of  rules  and  regulations  were  concerned. 

From  time  to  time  Stuyvesant  issued  proclamations  for  the 
government  of  the  colony  and  for  the  better  control  of  the  busi- 
ness of  the  company  for  which  he  was  particularly  responsi- 
ble. These  edicts  related  not  only  to  the  financial  maintenance  of 
the  colony  and  to  the  development  of  the  company's  business, 
but  also  to  the  general  behavior  of  the  members  of  the  little 
community.  There  were  enactments  against  the  desecration  of 
the  Sabbath,  fighting,  and  such  like  irregularities.  Tavern-keep- 
ers were  forbidden  to  furnish  any  persons,  except  travellers  and 
the  inmates  of  their  own  houses,  with  liquor  on  the  Lord's  day 
before  two  o'clock  in  the  afternoon.  No  liquors  were  to  be  sold 
on  any  account  to  the  savages  under  penalty  of  five  Carolus 
guilders,  the  seller  to  be  responsible  for  the  consequences,  nor  to 
any  person  whatsoever  after  the  ringing  of  the  bell  at  nine 
o'clock  in  the  evening.  The  statute  law  of  the  Fatherland  was 
declared  to  be  in  force  against  all  who  should  draw  a  knife  upon 
and  wound  others;  simply  drawing  a  knife  was  to  be  punished 
by  a  fine  of  one  hundred  Carolus  guilders,  or  six  months'  hard 
labor  on  bread  and  water;  if  a  word  followed,  the  penalty  was  to 
be  increased  threefold. 

Stringent  enactments  against  smuggling  were  promulgated. 
With  a  view  to  defraud  the  revenue,  a  practice  had  sprung  up 
among  the  traders  of  sending  their  furs  to  New  England  or  to 
Virginia,  whence  they  would  be  transhipped  to  Europe ;  also  mer- 

48 


HISTORY  OF  NEW   YORK 

chandise  of  various  kinds  was  surreptitiously  introduced  into  the 
province  in  vessels  which  passed  the  island  of  Manhattan  under 
cover  of  darkness.  To  put  a  stop  to  this,  strict  orders  were  given 
that  no  merchandise  should  be  sold  within  the  limits  of  the  com- 
pany's jurisdiction  before  it  had  been  entered  and  the  duties 
thereon  paid.  It  was,  moreover,  commanded  that  henceforward 
no  furs  should  be  exported,  under  penalty  of  confiscation,  until 
they  had  first  been  marked  with  the  company's  stamp  and  recog- 
nized. All  fur  traders  were  to  be  compelled  to  exhibit  their  books 
on  demand,  to  be  inspected  by  the  director  general,  in  order  that 
he  might  ascertain  to  whom  sales  had  been  made  and  if  the 
proper  duties  had  been  paid.  To  carry  on  the  public  service. 
excise  duties  on  wines  and  Spirituous  liquors  were  imposed  and 
the  export  duties  on  furs  were  increased.  Municipal  regulations 
were  also  announced  in  order  that  the  living  conditions  of  the 
town  should  be  improved,  as  was  greatly  needed.- 

It  was  not  long  before  the  new  governor  found  himself 
forced  to  take  up  for  consideration  the  question  which  had  made 
the  closing  years  of  his  predecessor's  administration  years  of 
trial  and  tribulation.  The  desire  of  the  colonists  for  a  popular 
form  of  government,  in  a  measure  independent  of  the  West 
India  Company's  autocratic  rule, — a  desire  which  had  arisen 
during  the  regime  of  Van  Twiller  and  had  developed  under  Kieft, 
— was  now  displaying  itself  even  more  strongly  than  before.  The 
expectations  of  the  citizens  of  New  Amsterdam  that,  in  ridding 
themselves  of  Kieft,  they  would  succeed  in  achieving  the  privi- 
lege of  participating  in  the  government,  could  not  be  wholly 
denied.     Altogether,  Stuyvesant  was  too  much  of  a  soldier  to 


2.  "History  of  New  Netherland",  by  E.  B.  O'Callaghan,  M.  D.,  LL.D., 
vol.  II,  p.  22.  "Laws  and  Ordinances  of  New  Netherland",  in  "Records  of 
New  Amsterdam",  vol.  I,  p.  i. 

49 


LEGAL   AND   JUDICIAL 

view  with  equanimity  the  possible  curtaiHng  of  any  of  his 
authority.  Nevertheless,  he  dared  not  entirely  ignore  the  popular 
feeling  in  the  community  and  the  spirit  of  the  instructions  which 
had  been  given  to  him.  Accordingly,  when  he  found  that  he  was 
more  or  less  dependent  upon  the  colonists  to  assist  him  in  main- 
taining the  city  fortifications  and  in  inaugurating  measures  against 
the  Indians,  he  yielded.  In  an  order  to  the  people  he  directed 
them  to  name  eighteen  "expert  and  reasonable  persons"  from 
whom  he  would  select,  "as  is  customary  in  the  Fatherland,"  nine 
men  to  give  advice.  The  nominations  were  accordingly  made, 
and  on  September  25,  1646,  he  announced  his  choice,  declaring 
that: 

"Whereas  it  is  difficult  to  cover  so  many  heads  with  a  single  cap,  or 
to  reduce  so  many  different  opinions  to  one,  so  did  we,  heretofore,  with 
the  advice  of  our  Council  propose  to  the  commonalty  that  the  inhabitants 
should,  without  passion  or  envy,  nominate  a  double  number  of  persons 
from  the  most  notable,  reasonable,  honest  and  respectable  of  our  sub- 
jects, from  whom  we  might  select  a  single  number  of  Nine  Men,  to  them 
best  known,  to  confer  with  us  and  our  Council,  as  their  tribunes,  on  all 
means  to  promote  the  welfare  of  the  commonalty  as  well  as  that  of  the 
country.'" 

The  Nine  Men  who  were  chosen  were:  Augustine  Heer- 
mans,  Arnoldus  Van  Hardenburg,  Govert  Loockermans,  Jan 
Jansen  Dam,  Jacob  Wolfertsen  Van  Cowenhoven,  Hendrick  Hen- 
dricksen  Kip,  Michael  Jansen,  Jan  Evertsen  Bout  and  Thomas 
Hall.  Of  these  men,  three  were  of  the  merchants,  three  of  the 
citizens,  and  three  of  the  farmers,  and  they  were  representatives 
of  Manhattan,  Brueckelen,  Amersfoort  and  Pavonia.  This  body, 
which  was  officially  known  as  the  Board  of  Nine  Men,  had  certain 
judicial  powers  which  were  conferred  by  an  ordinance  of  the 
governor  September  25,  1647,  making  it  in  effect  a  court  of  infe- 


3.     "History  of  New  Netherland,"  by  E.  B.  O'Callaghan,  M.  D.,  LL.D., 
vol.  II,  p.  37. 

50 


HISTORY   OF  NEW   YORK 

rior  jurisdiction.  That  particular  section  of  the  charter  to  this 
board  which  defined  its  powers,  duties  and  methods  of  proce- 
dure, was  as  follows: 

"III.  Whereas,  by  increased  population,  the  number  of  lawsuits  and 
altercations  unavoidably  are  multiplied,  and  many  trifling  questions  may 
be  terminated  by  arbitrators;  otherwise,  important  affairs  must  be  post- 
poned to  the  great  prejudice  of  this  city  and  its  inhabitants,  and  at  the 
price  of  enormous  expense,  loss  of  time  and  vexation  of  the  contending 
parties,  therefore  three  out  of  the  number  chosen  shall  once  in  each  week, 
namely,  on  every  Thursday,  on  the  usual  court  day,  be  admitted  to  Our 
council,  as  long  as  civil  cases  are  before  the  Court,  to  become  acquainted 
with  cases  where  parties  might  be  referred  to  them  as  arbitrators ;  to 
wit :  one  from  the  merchants,  one  from  the  citizens,  and  one  from  the 
farmers.  This  shall  circulate  in  rotation  among  them  every  month,  and  in 
case  any  one  cannot  attend  Court,  by  reason  of  sickness  or  otherwise, 
another  member  of  the  class  shall  then  take  his  place,  when  parties  shall 
be  referred  by  the  Director  to  them  as  arbitrators,  to  whose  decision 
parties  shall  be  obliged  to  submit,  or  by  unwillingness  pay  for  the  first 
time  one  pound  Flemish  ($2.40),  before  the  plaintiff  can  appeal  or  be 
admitted  to  Our  Council."* 

In  the  same  charter  it  was  prescribed  that  the  Nine  Men 

"Shall  endeavor  to  exert  themselves  to  promote  the  honor  of  God,  and 
the  welfare  of  Our  dear  Fatherland,  to  the  best  advantage  of  the  Com- 
pany and  the  prosperity  of  Our  good  citizens;  to  the  preservation  of  the 
pure  Reformed  Religion  as  it  here  and  in  the  Churches  of  the  Netherlands 
is  inculcated.  They  shall  not  assist  at  any  private  conventicles  or  meetings, 
much  less  patronize  such  like  deliberations  and  resolves,  except  with  the 
special  knowledge  and  advice  of  the  Honorable  Director-general  and  Coun- 
cil and  on  his  special  order,  unless  only  when  they  are  convened  in  a 
legitimate  manner,  and  have  received  the  proposals  of  the  Director-general 
and  Council,  then  they  have  liberty  to  delay  so  that  they  may  consult  to- 
gether upon  such  proposals  and  then  bring  forward  their  advice;  provided 
that  it  remains  always  in  the  power  of  the  Director-general  either  to  assist 
at  such  meeting  in  person  or  to  appoint  either  one  of  the  Council  to  act  as 
President  of  such  meeting."* 

Notwithstanding  this  apparently  substantial  concession  to  the 


4.  "Historv  of  New  Netherland,"  by  E.  B.  O'Callaghan,  M.  D.,  LL.D., 
vol.  II,  p.  38. 

5.  Ibid.,  vol.  II,  pp.  38-39. 

51 


LEGAL   AND   JUDICIAL 

popular  will,  the  government  of  Stuyvesant  did  not  succeed  in 
winning  much  more  popular  favor  than  had  that  of  his  predeces- 
sor. The  people  desired  to  live  under  institutions  to  which  they 
had  been  accustomed  in  Holland,  and  nothing  less  than  this  full 
measure  of  freedom  would  satisfy  them.  They  could  not  endure 
a  condition  of  subservience  to  appointed  authority  constituting  a 
system  which  was  wholly  at  variance  with  their  natural  instincts 
and  their  feeling  of  nationality.  Stuyvesant  was  a  military  ruler 
unaccustomed  to  paying  deference  to  any  save  his  superiors  in 
authority.  There  was  thus  a  wide  gulf  between  the  director  and 
the  people,  impossible  to  be  bridged  by  any  concessions  which 
would  be  considered  reasonable  on  the  side  of  authority,  or  sat- 
isfactory on  the  side  of  the  people.  Almost  from  the  beginning, 
the  director  was  constantly  at  variance  with  the  popular  leaders, 
and  in  less  than  two  years  he  was  in  open  conflict  not  only  with 
the  Board  of  Nine  Men,  but  also  with  schout-fiscal  Van  Dyke 
and  vice-director  Van  Dincklagen.  It  was  still  possible  for  him 
to  control  the  council,  but  he  was  not  always  able  to  impose  his 
will  upon  the  popular  body  of  Nine  Men. 

Soon  came  a  crisis  in  affairs.  The  Nine  Men,  voicing  the 
spirit  of  discontent  in  the  community,  resolved  to  send  a  delega- 
tion to  Holland  to  present  their  grievances  to  the  West  India 
Company  and  the  States  General.  A  spirited  remonstrance  was 
drawn  up,  and  three  of  the  board,  Adriaen  Van  der  Donck,  Jacob 
Van  Cowenhoven  and  Jan  Evertsen  Bout,  were  deputed  to  pro- 
ceed with  it  to  the  Fatherland.  This  celebrated  document,  the 
"Vertoogh  van  Nicuv-Nedcr-Landt"  (Remonstrance  of  New 
Netherland),  was  probably  written  by  Van  der  Donck,  who  was 
president  of  the  Board  of  Nine  Men.  It  was  signed  by  all  the 
members  of  the  existing  and  of  the  former  boards  of  Nine  Men, 
July  26,  1649,  ^"d  the  three  delegates  sailed  for  Holland  with 

52 


HISTORY   OF  NET'/   YORK 

it  in  the  ensuing  month  of  August.*  In  this  Remonstrance,  Stuy- 
vesant  and  his  methods  in  the  administration  of  justice  were 
characterized  in  no  mild  terms : 

"As  regards  the  Director,  his  manner  in  court  has  been,  from  his 
first  arrival  unto  this  time,  to  browbeat,  dispute  with  and  harass  one  of  the 
two  parties;  not  as  beseemeth  a  Judge,  but  like  a  zealous  advocate.  This 
has  caused  great  discontent  everywhere,  and  has  gone  so  far  and  had  such 
an  effect  on  some,  that  many  dare  not  bring  any  suits  before  the  court, 
if  they  do  not  stand  well,  or  passably  so,  with  the  Director ;  for  whom  he 
opposeth  hath  both  sun  and  moon  against  him.  In  addition  to  the  fact 
that  he  hath  himself  appointed  and  obliged  so  many  Councillors,  some  of 
whom  also  are  well  disposed,  so  that  he  can  constrain  the  others  by  plural- 
ity of  votes,  he  likewise  frequently  submits  his  opinions  in  writing,  and 
that  so  fully  and  amply  that  it  takes  up  some  side,  and  then  his  word  is 
"Gentlemen,  this  is  my  opinion,  if  anyone  have  aught  to  object  to  it,  let 
him  express  it."  If  any  one,  then,  on  the  instant,  offer  objection,  which  is 
not  very  easy  unless  he  be  well  grounded,  his  Honor  bursts  forth,  incon- 
tinently, into  a  rage,  and  makes  such  a  to-do  that  it  is  dreadful ;  yea,  he  fre- 
quently abuses  the  Councillors  as  this  and  as  that,  in  foul  language  better 
befitting  the  fish  market  than  the  council  board ;  and  if  all  this  be  tolerated, 
he  will  not  be  satisfied  until  he  have  his  way." 

This  mission  to  Holland  was  only  partially  successful.  A 
hearing  was  accorded  to  the  New  Netherland  delegates  in  April 
of  the  following  year.  A  provisional  order  was  issued  by  the 
States  General  providing  for  the  government,  preservation  and 
peopling  of  New  Netherland,  and  suggesting  to  the  West  India 
Company  that  Stuyvesant  should  be  recalled  to  make  a  report 
upon  the  condition  of  affairs  under  his  jurisdiction.  In  this 
order  it  was  announced  that  a  burgher  government  should  be 
established  in  New  Amsterdam,  in  pursuance  of  the  request  of 
the  people  there,  to  consist  of  two  burgomasters,  five  schepens, 
and  a  schout;  and  it  was  furthermore  decided  that  a  court  of 
justice  should  be  erected  in  New  Netherland,  and  that,  pending 


6.    "Documents  Relative  to  the  Colonial  History  of  the  State  of  New 
York,"  by  E.  B.  O'Callaghan,  M.  D.,  LL.D.,  vol.  I,  p.  275. 

53 


LEGAL   AND   JUDICIAL 

the  conclusion  of  this  arrangement,  tlie  Nine  Men  should  continue 
in  office  for  three  years  longer,  and  exercise  limited  judicial 
powers  in  the  trial  of  "small  civil  causes  arising  between  man  and 
man,"  and  "to  adjudicate  definitely  on  suits  not  exceeding  the 
sum  of  Fifty  Guilders  and  on  higher  amounts  under  privilege  of 
appeal."^ 

When  these  orders  reached  New  Amsterdam,  Stuyvesant 
refused  to  comply  with  them,  possibly  under  instructions,  given 
or  implied,  of  the  Assembly  of  Nineteen,  and  the  difficulties 
appeared  as  far  away  from  settlement  as  ever  before.  In  another 
appeal  to  the  States  General  sent  by  the  Nine  Men  was  the  fol- 
lowing : 

"We  have  seen  and  found  your  High  Mightinesses  our  kind  and  lov- 
ing fathers  who  have  taken  to  heart  the  pitiful  and  desolate  condition  of 
the  poor  commonalty  here,  for  which  we  cannot  sufficiently  express  our 
thankfulness  to  God  and  to  you.  But  the  non-arrival  of  reform,  the 
neglect  of  Director  Stuyvesant  to  obey  your  orders  though  they  have 
been  communicated  to  him,  and  the  continuation  of  affairs  in  the  same 
sad  condition  already  submitted  to  you,  compel  us  again  to  pray  your 
High  Mightinesses  to  show  favor  to  us,  for  we  cannot  undertake  any- 
thing as  long  as  reforms  are  withheld.  We  hope  you  will  give  us  a 
good  and  wholesome  government." 

The  struggle  continued  for  more  than  two  years  longer, 
Stuyvesant  obstinately  holding  out  against  the  wishes  of  the  peo- 
ple and  ignoring  as  much  as  he  could  the  orders  of  the  States 
General  and  the  West  India  Company.  He  grew  more  and  more 
violent  and  unreasonable,  imprisoned  Van  Dincklagen  for  unit- 
ing with  Van  der  Donck  in  protest  to  the  States  General,  dis- 
ynissed  from  office  the  schout-fiscal,  Van  Dyck,  for  co-operating 
with  the  Nine  Men,  and  followed  up  these  acts  by  equally  arbi- 
trary measures  against  other  leaders  of  the  popular  movement. 


7.  "Documents  Relative  to  the  Colonial  History  of  the  State  of  New 
York,"  by  E.  B.  O'Callaghan,  M.  D.,  LL.D.,  vol.  I,  pp.  387,  389  and  391. 
Ibid.,  vol.  I,  p.  387. 

54 


HISTORY  OF  NEW   YORK 

"The  four  years  during  which  Stuyvcsant  had  administrated  the 
government  of  New  Netherland  were  marked  by  arbitrary  efforts  to 
repress  the  spirit  of  popular  freedom  which  the  Dutch  emigrants  brought 
with  them  from  the  Fatherland.  In  turn  the  Nine  Men,  the  vice-director 
(Van  Dincklagen),  the  only  notary  in  the  province  (Van  Schelluyne), 
and  the  patroon  of  Staten  Island  (Melyn),  were  made  to  feel  the  dis- 
pleasure of  authority.  Van  Dyck,  the  schout-Hscal,  who  sided  with  the 
Nine  men,  was  early  excluded  from  the  council  and  personally  insulted 
by  his  imperious  chief.'" 

Meantime,  Van  der  Donck  and  Melyn  continued  to  press 
their  case  before  the  Holland  authorities,  and  finally  the  Assem- 
bly of  Nineteen,  after  they  had  employed  every  other  possible 
means  to  counteract  the  popular  movement,  was  compelled  to 
yield  and  decide  that  the  citizens  of  New  Amsterdam,  in  accord- 
ance with  the  seventeenth  clause  of  the  provisional  order  of  1650, 
should  have  a  municipal  form  of  government.  This  was  the 
beginning  of  municipal  institutions  in  the  metropolis  of  the  New 
World.    The  Assembly  wrote  to  Stuyvesant,  April  4,  1652: 

"We  have  resolved  to  permit  you  hereby  to  erect  a  Court  of  Justice 
(een  banck  van  justitie)  formed,  as  much  as  possible,  after  the  custom  of 
this  City;  to  which  end,  printed  copies  relative  to  all  the  law  courts  here, 
and  their  whole  government,  are  sent  herewith.  And  we  presume  that  it 
will  be  sufficient  at  first  to  choose  one  schout,  two  Burgomasters  and  five 
Schepens,  from  all  of  whose  judgments  an  appeal  shall  lie  to  the  Supreme 
Council,  where  definite  judgment  shall  be  decreed.'" 

It  was  evident  from  the  order  of  the  States  General  and  also 
from  the  directions  issued  by  the  Assembly  of  Nineteen,  that 
it  was  the  intention  to  have  these  officers  elected  by  the  people, 
according  to  the  custom  which  then  prevailed  in  the  cities,  towns 
and  villages  of  Holland.  Stuyvesant,  however,  was  not  inclined 
to  allow  this  concession  to  go  further  than  he  was  absolutely 


8.  "History  of  the  State  of  New  York,"  by  J.  T.  Brodhead,  vol.  I,  p. 
532. 

9.  "Documentary   History  of  the   State   of   New   York",   by   E.   B. 
O'Callaghan,  M.  D.,  LL.D.,  vol.  I,  p.  387. 

55 


LEGAL   AND   JUDICIAL 

compelled,  and  he  chose  to  ignore  the  spirit,  if  not  the  letter,  of 
his  instructions.  Accordingly,  upon  the  second  of  February, 
1653,  he  promulgated  a  proclamation  in  which  he  announced  that 
the  town  would  henceforth  be  ruled  by  two  burgomasters  and  five 
schepens  who  should  be  appointed  by  him.  At  the  same  time  he 
officially  declared  that  the  settlement  on  the  Island  of  Manhattan 
should  thereafter  be  the  city  of  New  Amsterdam. 

Still  the  municipal  court  was  not  completed,  since  no  sellout 
of  the  city  had  been  provided.  Cornelis  Van  Tienhoven,  who 
had  held  that  position  for  the  West  India  Company,  was  directed 
to  act  in  the  same  capacity  for  the  city.  Although  the  prescribed 
form  of  government  was  that  which  existed  in  Amsterdam,  where 
the  burgomasters  had  the  right  to  appoint  their  secretary,  that 
privilege  was  denied  the  magistrates  appointed  by  Stuyvesant  for 
the  city  of  New  Amsterdam.  The  director  general  appointed 
Jacob  Kip  to  be  the  city  secretary,  with  a  salary  of  two  hundred 
and  fifty  florins  ($100.00).  In  making  this  appointment  there 
was  a  condition  that  the  West  India  Company  might  send  out 
from  Holland  another  man  for  the  place,  in  which  event  it  was 
promised  that  Kip  should  have  some  other  office  equally  good ; — 
an  example  of  providing  for  an  office  holder  which  has  been 
followed  even  to  later  times. 

Stuyvesant  also  took  occasion  to  inform  the  new  tribunal  in 
emphatic  terms  that  its  establishment,  or  the  scope  of  its  author- 
ity, did  not  in  the  slightest  degree  diminish  the  power  of  himself 
or  his  council  to  pass  whatever  laws  or  ordinances  they  pleased 
for  the  municipal  government  of  the  city.  He  appointed  as 
burgomasters  Arendt  Van  Hattem  and  Martin  Kregeir,  and  as 
schepens  Paulus  Leendersteen  Van  der  Grift,  Maximillian  Van 
Gheel,  Allard  Anthony,  Pieter  Wolfertsen  Van  Couwenhoven 
and  William  Beeckman. 

56 


HISTORY   OF  NEJV   YORK 

On  February  6  the  newly  appointed  magistrates  met  for  the 
first  time,  and  this  was  the  initial  meeting  of  a  popular  law  court 
in  New  Netherland.  Van  Tienhoven,  the  schout-Hscal  attended 
in  his  capacity  as  city  schout,  and  Jacob  Kip  was  present  as  secre- 
tary.   The  records  of  this  first  meeting  are  as  follows : 

"Thursday,  February  6,  1653,  present  Martin  Krigier  (Aarent  van 
Hattem,)  Poulus  Leendersen  van  die  Grift,  Maximilynus  van  Gheel,  and 
Allard   Anthony,   Willem   Beeckman   and    Pieter    (Wolfertsen). 

"Their  Honors,  the  Burgomasters  and  Schepcns  of  this  city  of  New 
Amsterdam,  herewith  inform  everybody,  that  they  shall  hold  their  regu- 
lar meetings  in  the  house  hereto  called  the  City  Tavern,  henceforth  the 
City  Hall,  on  Monday  mornings  from  9  o.  c,  to  hear  all  questions  of  dif- 
ference between  litigants  and  decide  them  as  best  they  can.  Let  every- 
body take  notice  hereof.  Done  this  6th  of  February,  1653,  at  N.  Amster- 
dam.    Signed    (as  above   except   Arent  van   Hattem.)"" 

Inasmuch  as  the  Stadt  Htiys  was  not  ready  on  the  day 
appointed,  the  next  meeting  of  the  magistrates  took  place  in  the 
fort,  February  10.  Upon  this  occasion  the  court  was  duly  organ- 
ized for  the  conduct  of  business.  Proceedings  opened  with 
prayer,  a  practice  which  was  thereafter  regularly  followed.  The 
prayer  offered  on  these  occasions  has  been  preserved  in  the 
records,  and  it  shows  the  keen  sense  of  responsibility  entertained 
by  the  new  magistrates  regarding  the  duties  and  obligations  of 
the  judicial  offices  which  they  held. 

"Oh  God  of  Gods,  and  Lord  of  Heavenly  Hosts  and  Merciful  Father, 
We  thank  thee,  not  only  that  Thou  hast  not  only  created  us  after  Thine 
own  image,  but  also  that  When  we  were  lost  Thou  hast  received  us  in 
Christ  as  Thine  own  Children  and  allies.  In  addition  it  has  pleased 
Thee  to  make  us  the  rulers  of  the  People  in  this  place.  Oh  Lord  our 
God,  we  miserable  men  acknowledge  that  we  are  not  worthy  of  this 
honor,  we  are  also  too  feeble  and  unfit  to  discharge  this  trust,  unless  Thou. 
O,  God,  give  us  assistance.    We  pray  Thee,  Oh,  Fountain  of  all  good  Gifts, 


10.     "The  Records  of  New  Amsterdam,  from  1653  to  1674,  Anno  Do- 
mini".   Edited  by  Berthold  Fernow.    New  York,  1897.    Vol.  1,  p.  49. 

57 


LEGAL   AND   JUDICIAL 

make  us  fit  through  Thy  mercy,  that  we  may  do  the  duties  imposed  upon 
us  faithfully  and  righteously.  Enlighten  to  this  end  the  darkness  of  our 
minds,  that  we  may  distinguish  right  from  wrong,  truth  from  hes,  and 
give  clean  and  just  decision  as  judges,  having  our  eyes  on  Thy  Word, 
which  is  a  sure  guide  to  simple  wisdom.  Let  Thy  Law  be  the  light  upon 
our  paths  and  a  lantern  for  our  footsteps,  that  we  may  never  leave  the 
fate  of  justice.  Let  us  remember,  that  we  hold  court,  not  of  men  but  of 
God,  who  sees  and  hears  everything.  Let  respect  for  persons  be  so  that  we 
may  judge  the  poor  and  rich,  friends  and  enemies,  inhabitants  and  strang- 
ers, according  to  the  same  rules  of  truth,  and  never  deviate  from  them  as 
a  favor  to  anybody,  and  whereas  gifts  to  blind  the  eyes  of  the  wise,  keep 
our  hearts  from  greed,  and  grant  also  that  we  condemn  nobody  lightly  or 
unheard,  but  listen  patiently  to  litigant  parties,  give  them  time  to  defend 
themselves.  Thy  mouth  and  word  be  our  council.  Grant  us  also  the 
grace,  that  we  may  use  the  power  which  Thou  hast  given  us,  for  the  general 
benefit  of  the  authorities  of  the  church,  the  protection  of  the  good,  and  the 
punishment  of  the  bad.  Incline  also  the  hearts  of  the  subjects  to  dutiful 
obedience,  that  by  their  love  and  prayers  our  burden  may  be  lightened. 
Thou  knowest  also,  Oh,  Lord,  that  the  bad  and  ungodly  men  usually  vilify 
and  speak  against  Thy  holy  ordinances,  therefore  arm  us  with  strength, 
courage,  wisdom  and  confidence,  that  we  may  oppose  all  sins  and  bad 
things  earnestly  and  zealously,  and  fight  for  justice  and  truth  until  we  are 
dead.  Please  also.  Oh,  Good  Lord,  to  bless  the  resolutions  to  be  taken  by 
us,  that  they  may  be  carried  out,  and  have  eflfect  to  the  honor  of  Thy  holy 
Name,  for  the  best  of  this  place,  entrusted  to  us  for  our  salvation.  Hear 
and  listen  to  us.  Oh,  Good  God,  in  this  and  in  all  which  Thou  knowest  is 
for  our  good,  for  the  sake  of  Jesus  Christ,  Thy  dear  son,  in  whose  name 
we  close  our  Prayer,  thus:  Our  Father,  &c."" 

As  has  been  already  shown,  it  was  the  intention  of  the  Hol- 
land authorities  that  the  municipal  government  of  New  Amster- 
dam should  particularly  conform  to  the  home  institutions  of  the 
same  character,  but  Stuyvesant's  determination  to  reserve  certain 
powers  to  himself  and  his  council  served  materially  to  modify  in 
many  respects  the  new  tribunal,  and  its  precise  scope  and  powers 
were  left  very  indefinite  and  uncertain. 

"In  Amsterdam  there  were  four  burgomasters,  each  of  whom  attended 
three  months  of  the  year,  in  rotation,  at  the  city  hall,  for  the  dispatch 


II.    "Records  of  New  Amsterdam",  vol.  I,  p.  48. 

58 


HISTORY  OF  NEW   YORK 

of  public   business,   and   the   schepens,   who   were   nine   in   number,   held 

the  regular  court  of  justice,  having  civil  and  criminal  jurisdiction,  which 

was  almost  unlimited.    The  duties  of  the  schepevs  were  especially  judicial, 

while  those  of  the  sellout  and  the  burgomasters  were  chiefly  executive, 

and  the  three  bodies  assembled  together,  constituted  a  college,   for   the 

enactment  of  municipal  ordinances  and  laws,  under  the  title  of  'the  lords 

of  the  court  of  the  city  of  Amsterdam'." 

I 

In  New  Amsterdam  there  was  no  such  division  of  authority 
on  the  part  of  the  newly  elected  officers.  All  assembled  as  a 
single  body  and  in  that  united  capacity  discharged  legislative, 
judicial  and  executive  functions.  In  the  beginning  they  were 
disinclined  to  interfere  at  all  in  municipal  affairs. 

In  the  Fatherland  the  sellout  in  every  town  and  village  was 
the  chief  officer  of  the  board  of  magistrates.  He  convoked  the 
court  and  presided  over  its  deliberations ;  but  he  had  no  vote, 
although  he  might  express  his  opinion,  his  position  in  an  advis- 
ory capacity  being  thus  recognized ;  when  he  was  called  upon  to 
act  as  prosecuting  officer,  his  seat  as  president  was  taken  by  the 
oldest  burgomaster.  Practice  in  this  respect  in  New  Amsterdam 
was  different.  Arendt  Van  Hattem  was  first  on  the  list  as  named 
by  Stuyvesant,  and  by  virtue  of  that  assumed  the  presidency  of 
the  court.  When  he  was  retired  from  office  the  eldest  burgo- 
master acted  as  president  until  1656,  in  which  year  Stuyvesant 
ordered  that  the  presidency  should  be  changed  every  three 
months.  On  June  26,  1656,  the  burgomasters  petitioned  the 
governor  and  council  to  appoint  from  the  citizens  "an  intelligent 
and  expert"  person  as  sheriff  of  the  city.  This  Stuyvesant 
refused  to  do,  but  he  made  a  concession  to  popular  opinion  by 
appointing  Nicasius  de  Sille  to  succeed  Van  Tienhoven  as  schout 
of  the  company  as  well  as  the  city.  Furthermore,  he  enlarged 
the  criminal  jurisdiction  of  the  magistrates,  and  permission  was 
given  to  them  to  punish  by  branding  and  whipping,  unless  the 

59 


LEGAL   AND   JUDICIAL 

prisoner  should  appeal  from  his  sentence  within  twenty- four 
hours.  Finally,  in  1660,  the  people  succeeded  in  having  the  office 
of  city  sellout  and  that  of  schout-fiscal  made  separate,  as  it  was  in 
Holland. 

Before  1657,  that  branch  of  municipal  affairs  which  especially 
required  the  discharge  of  executive  duties  had  increased  so  largely 
that  the  burgomasters  organized  a  separate  court,  which  met 
every  Thursday.  In  view  of  the  encroachment  made  upon  their 
time  by  the  accumulation  of  duties,  or,  as  they  expressed  it,  "the 
impossibility  of  attending  to  their  private  affairs,"  the  burgo- 
masters petitioned  StU)rvesant  to  be  released  thereafter  from 
attending  the  burgher  court,  but  he  refused  to  grant  this  request, 
and  the  court  continued  in  the  discharge  of  mixed  legislative  and 
judicial  functions  as  long  as  the  Dutch  held  possession  of  the 
province. 

The  proceedings  of  this  tribunal,  or,  as  it  was  denominated, 
"the  worshipful  court  of  the  schout,  burgomasters  and  sehepens," 
were  recorded  by  their  clerk  or  secretary,  and  as  everything 
which  took  place  before  it, — the  nature  of  the  claim  and  of  the 
defense,  the  statements  of  the  parties,  the  proof  and  the  decision 
of  the  court,  with  the  reasons  assigned  for  it, — were  carefully 
noted  and  written  down,  these  records  supply  a  full  account  of 
the  whole  course  of  its  proceedings,  and  furnish  an  interesting 
exposition  of  the  habits  and  manners  of  the  people. 

The  court  met  for  the  first  time  in  the  Stadt  Huys,  February 
24,  1653,  and  this  became  its  regular  place  of  meeting.  The 
Stadt  Huys,  which  was  thus  distinguished  as  being  the  place  of 
the  assembling  of  the  first  law  court  in  the  American  colonies 
outside  of  New  England,  was  situated  on  Pearl  street,  at  the 
corner  of  Coenties  lane,  at  the  head  of  the  Coenties  slip,  facing 
the  East  river.    It  was  a  stone  building  originally  put  up  as  a  tav- 

60 


HISTORY  OF  NEW   YORK 

cm  during  the  time  of  Director  General  Kieft.  It  was  fifty  feet 
square,  with  three  upright  stories  and  a  two-storied  gabled  roof, 
and  was  conspicuous  far  down  the  harbor.  Behind  it  was  a 
Dutch  garden  of  flowers  and  vegetables,  and  through  this  was  a 
pathway  leading  to  Hoogh  strad,  or  Stone  street,  the  road  to  the 
ferry. 

On  the  second  floor  of  this  building,  at  the  southeast  corner, 
\vas  a  large  chamber  which  was  used  for  the  court  room.  On 
the  window  panes  of  this  room  were  engraved  the  arms  of  New 
Amsterdam.  Above  the  bench  on  which  the  magistrates  sat 
were  the  orange,  blue  and  white  of  the  West  India  Company, 
and  the  colors  of  Holland.  Here  also  was  the  painted  coat-of- 
arms  of  the  city,  which  was  sent  over  by  the  directors  of  the 
West  India  Company  in  1654.  On  the  wall  near  the  door  were 
suspended  fifty  leathern  buckets,  which  constituted  the  fire  equip- 
ment of  the  city.  In  the  cupola  which  surmounted  the  building 
hung  a  bell  which  was  rung  for  the  assembling  of  the  court  and 
for  the  announcing  of  proclamations.  The  bell  ringer  was  a  man 
of  many  and  varied  employments.  He  served  as  the  court  mes- 
senger, was  the  village  grave  digger  and  the  church  chorister, 
and  sometimes  was  schoolmaster.  As  an  attendant  of  the  court 
he  served  the  magistrates  in  small  ways,  keeping  the  court  room 
in  order,  providing  the  magistrates  with  papers  and  other  things 
necessary  to  their  work,  and  ringing  the  bell  at  the  opening  of  the 
court  in  the  morning  and  for  adjournment  at  noon.  From  the 
platform  erected  in  front  of  the  court  house  he  read  the  procla- 
mations. For  many  years  the  bell  ringer  was  Jan  Gillisen, 
familiarly  called  Kock. 

Previous  to  the  establishment  of  this  court,  the  prison  was 
in  the  fort,  but  now  a  chamber  in  the  rear  of  the  court  room 
Avas  utilized  for  this  purpose.     Instructions  which  were  issued 

61 


LEGAL   AND   JUDICIAL 

for  the  keeper  of  the  jail  and  public  prison  in  January,  1658, 
show  how  this  part  of  the  judicial  authority  was  carried  out.^* 

"i. — The  keeper  of  the  jail  of  this  city  is  bound  to  receive  into  the 
jail  all  prisoners,  who  shall  be  committed  or  delivered  over  to  him  by 
the  Schout,  Burgomasters  and  Schcpens  or  Burgher  Court  Martial  (who 
are  allowed  this  provisionally  and  until  further  order)  or  in  their  name. 

"2. — The  Jailor  shall  safely  keep  all  prisoners  sent  to  him  whether 
they  be  arrested  on  civil  or  criminal  process. 

"3.  The  Jailor  shall  sleep  every  night  in  his  ordinary  chamber  and 
not  out  of  it,  except  by  consent  of  the  President;  and  if  he  remains  out 
of  it  without  consent,  he  shall  be  fined  for  the  first  time  20  stivers,  for 
the  second  time  30  stivers,  and  for  the  third  time  be  deprived  of  his  office, 
even  though  there  be  no  prisoners  in  the  jail. 

"4. — And  if  it  happen  that  any  prisoner  break  out  or  escape  through 
neglect  of  the  Jailor,  he  may  be  sued  therefor,  and  he  must  defend  him- 
self before  the  Judge. 

"5. — Item,  the  Jailor  is  bound  to  note  when  the  prisoners  are  brought 
into  the  public  gaol  and  the  name  and  surname  and  also  when  they  are 
discharged,  and  what  cloaths,  money,  goods  they  brought  with  them  into 
the  prison  and  deliver  in  every  Monday  a  list  of  the  prisoners. 

"6. — The  Jailor  shall  also  look  closely  after  the  prisoners  apprehended  for 
capital  offenses  that  they  have  not  knives,  irons,  rope  or  other  instru- 
ments to  break  out  or  to  injure  themselves;  the  Jailor  shall  also  thor- 
oughly visit  the  prisoners  and  the  cells  at  least  two  or  three  times  a 
week  either  by  night  or  by  day,  and  may  take  as  Assistant  the  Schout's 
deputy,  who  is  bound  to  aid  him  at  his  request. 

"7. — The  Jailor  also  shall  not  be  allowed  to  relieve  prisoners  from 
their  fetters  nor  increase  the!m  except  by  the  consent  of  the  Schout, 
Burgomasters  and  Schepens,  unless  through  cause  of  a  desire  to  break 
out ;  he  may  then  increase  them  and  secure  them  by  day  or  by  night, 
and  shall  immediately  make  known  those,  who  are  secured,  to  the  Schout 
and  President. 

"8. — Item,  the  Jailor  cannot  give  those  who,  for  fighting,  drawing 
knives  or  other  arms,  are  placed  on  bread  and  water,  or  let  them  have 
anything  else,  nor  even  sell  them  anything,  unless  by  consent  of  the  Schout,. 
Burgomasters  and  Schepens. 

"g. — The  Jailor  must  not  tap  nor  hold  with  the  prisoners  any  con- 
versation of  games,  drinking  or  otherwise. 

"10. — The  Jailor  shall  furnish  the  prisoners  meat  and  drink  according; 


"Records  of  New  Amsterdam",  vol.  II,  p.  294. 
62 


HISTORY   OF  NEfF   YORK 

to  order  and  shall  receive  for  it  according  to  the  rules  granted  him  there- 
for. 

"ii. — The  Jailor  shall  inspect  and  clean  the  prison  every  week,  so 
that  no  stench  may  arise,  wherein  the  Schout  and  Judge  shall  pay  attention, 
that  it  is  properly  obeyed. 

"i2.  The  Jailor  shall  not  allow  any  one  to  come  to  speak  to  the  pris- 
oners, except  through  the  grating,  without  consent  of  the  Schout  and 
Praeses. 

"13.  No  person  shall  speak  to  the  prisoner  until  he  be  examined  by 
the  Judge  for  some  offense. 

"14. — No  person  shall  stay  the  night  with  a  prisoner  for  any  offense, 
even  though  man  and  wife. 

"15. — The  Jailor  shall  separate  the  prisoners,  as  much  as  possible  from 
each  other,  and  arrange  them  according  to  their  offences  and  per- 
sons ;  especially  the  women  from  the  men. 

"16. — The  Jailor  shall  not  receive  any  prisoners  in  the  gaol  except 
with  consent  of  the  Schout  and  Judge  or  of  the  Officer  of  the  Burgher 
Court  Marshall. 

"Allowance  of  the  Jailor.  The  Jailor  shall  have  for  locking  and  un- 
locking each  prisoner  fl.  6.  He  shall  receive  for  criminal  cases  on  bread 
and  water  per  day — :  10.  From  those  confined  on  civil  process  he  shall  re- 
ceive 20  stiv :  per  day  or  as  much  as  the  Judge  shall  please  to  order.  Each 
week  shall  be  furnished  three  lbs.  of  beef,  one  lb.  and  a  half  of  pork,  one 
loaf  per  week,  two  cans  of  small  beer  in  summer  per  day  and  one  can  of 
small  beer  in  winter,  pottage  and  cheese  occasionally.  Whoever  re- 
quires more  must  pay  for  food  pro  rata. 

"Those,  who  sit  in  the  prison  chamber,  shall  have  a  candle  every  two 
days,  and  shall  let  this  burn  until  nine  o'Clock  and  in  winter  until  eight 
o'clock,  and  no  longer;  but  no  fire  nor  light  in  the  other  rooms  of  the 
prison." 

Sessions  of  the  court  were  held  every  two  weeks  for  the 
trial  of  minor  causes,  but  sometimes  sessions  were  held  as  fre- 
quently as  once  a  week.  The  court  opened  at  nine  in  the  morn- 
ing and  adjourned  at  noon.  In  case  all  business  was  not  finished 
in  the  forenoon,  another  session  after  the  mid-day  dinner  was 
eaten  would  be  held.  The  magistrates  were  bound  strictly  to  the 
performance  of  their  duties  by  the  force  of  public  opinion  and  by 
their  own  high  sense  of  official  honor.  Absence  from  the  bench, 
except  for  unavoidable  cause,  was  highly  reprobated.    Fines  were 

63 


LEGAL   AND   JUDICIAL 

imposed  for  absence,  the  regulation  in  this  respect  being  fixed 
on  a  sliding  scale  as  appears  from  the  following: 

"Resolved,  ratified  and  concluded  in  Court,  that  the  previously  enacted 
Ordinance  of  Sellout,  Burgomasters  and  Seltepens  on  the  subject  of  ap- 
pearance at  and  absence  from  the  ordinary,  extraordinary  and  other  meet- 
ings shall  be  strictly  obeyed  and  observed  conformably  to  its  tenor;  to 
wit : — Whoever  comes  half  an  hour  too  late  shall  pay  a  fine  of  ten  stivers 
(i2  cents).  Whoever  comes  one  hour  late  twenty  stiv.:  Whoever  is  absent 
altogether  forty  stiv:"" 

After  some  years  the  court  voted  itself  a  winter  recess,  or 
as  the  record  says : 

"Whereas  the  winter  festivities  are  at  hand,  it  is  found  good  that 
between  this  day  and  three  weeks  after  Christmas  the  ordinary  meetings 
of  the  court  shall  be  dispensed  with." 

A  salary  of  three  hundred  and  fifty  guilders  ($140.00)  was 
fixed  for  each  burgomaster,  and  two  hundred  and  fifty  guilders 
($100.00)  for  each  schepcn.  It  would  appear,  however,  that 
these  salaries  were  to  a  considerable  extent  merely  nominal,  for 
they  were  paid  with  no  degree  of  regularity.  No  funds  were  set 
apart  by  the  council  for  this  particular  purpose,  and  the  officials 
found  it  necessary  frequently  to  appeal  to  Stuyvesant  and  his 
council, — to  use  their  own  picturesque  and  impressive  language: 
— "for  the  arrears  of  their  salaries  so  long  forgotten,  in  order 
that  once  seeing  the  efforts  of  their  labors  they  may  be  encouraged 
to  still  greater  zeal."  Stuyvesant  gave  them  full  permission  to 
draw  their  arrearages  of  salary  from  the  city  treasury.  Inas- 
much as  there  were  no  monies  in  the  treasury  and  the  board  had 
no  authority  to  raise  funds  by  any  plan  of  taxation,  this  per- 
mission of  the  governor  did  not  have  much  practical  force. 
However,  it  was  generally  considered  that  the  magisterial  position 


13.    Records  of  New  Amsterdam,"  vol.  Ill,  p.  162. 

64 


HISTORY  OF  NEW   YORK 

was  a  place  of  great  honor  and  respectability.  Although  those 
who  held  it  were  poorly  recompensed  in  money  for  their  services, 
they  had  the  satisfaction  of  being  entitled  to  be  called  "My  Lord," 
and  elevated  positions  were  reserved  for  them  on  ceremonious 
occasions.  In  the  court  room  of  the  Stadt  Hnys  soft  cushions 
made  their  seats  very  comfortable,  and  on  Sunday  these  cushions 
were  removed  to  the  church  within  the  fort  for  the  further 
accommodation  of  the  dignitaries.  A  pew  in  the  church  was  set 
apart  for  them,  and  on  Sunday  they  and  their  families  went  early 
to  the  Stadt  Huys  and  proceeded  to  the  church  in  a  procession 
which  was  led  by  the  court  messenger. 

From  the  outset  this  court  fully  demonstrated  its  practical 
usefulness,  and  in  a  short  time  it  became  one  of  the  strongest 
institutions  in  controlling  and  developing  the  new  community.  It 
was  a  bulwark  between  the  director  general  and  his  council  on 
the  one  hand,  and  the  people  on  the  other;  the  one  representing 
the  commercial  interests  of  the  big  corporation  and  the  other 
constituting  a  purely  civic  institution.  It  also  served  to  hold  the 
balance  of  right  and  wrong  between  individuals  of  the  commun- 
ity in  their  relations  to  each  other,  as  well  as  in  their  obligations 
to  the  West  India  Company. 

The  establishment  of  this  board  of  the  schout,  burgomasters 
and  schepens,  and  the  opening  of  the  court,  was  only  the  begin- 
ning, the  entering  wedge.  Gradually  but  surely,  municipal  con- 
trol, for  which  the  people  had  so  long  contended,  went  from  the 
hands  of  the  director  general  into  those  of  the  representatives 
of  the  commonalty.  At  first  Stuyvesant  vigorously  claimed  the 
right  of  interfering  whensoever  it  might  please  him,  in  the  admin- 
istration of  city  matters,  but  even  in  the  exercise  of  this  preroga- 
tive he  appears  to  have  mostly  confined  himself  to  what  related 
to  the  general  regulation  of  the  city's  affairs.    In  the  administra- 

65 


LEGAL   AND  JUDICIAL 

tion  of  justice  between  individuals,  or  as  against  public  offenders, 
he  did  not  long  attempt  to  exercise  authority.  It  is  true  that  at 
first  he  was  disposed  to  limit  the  action  of  the  new  court  in 
criminal  cases.  But  as  time  went  on,  and  the  court  became  more 
and  more  firmly  established  as  an  unchallenged  municipal  institu- 
tion, its  criminal  and  civil  jurisdiction  became  practically  unHm- 
ited,  except  that  it  did  not  have  full  power  in  the  infliction  of 
punishment  in  capital  cases. 

Simple  and  summary  was  the  mode  of  procedure  in  civil 
cases,  and  the  determination  thereof  was  the  essence  of  justice. 
An  exhaustive  study  of  this  court  was  made  by  the  late  Judge 
Charles  P.  Daly,  who  in  his  review  of  the  subject  dwelt  much 
upon  the  authorities  concerning  procedure  in  the  courts  of  Hol- 
land which  were  followed  by  the  New  Amsterdam  tribunal.  His 
presentation  of  the  subject  first  appeared  in  the  introduction  to 
the  first  volume  of  the  reports  of  the  court  of  common  pleas  of 
the  city  and  county  of  New  York ;  subsequently  it  was  printed 
in  separate  form.  From  this  comprehensive  and  scholarly  digest 
a  clear  idea  may  be  had  of  the  court  methods  of  the  day,  some- 
thing of  the  character  of  the  cases  brought  before  the  magis- 
trates, and  the  privileges  accorded  plaintiffs  and  defendants." 

An  officer  who  was  known  as  the  court  messenger  was 
attached  to  the  court.  His  principal  duty  was  to  summon  for 
appearance  any  accused  individual,  at  the  verbal  request  of  an 
aggrieved  person.  Should  the  defendant  thus  summoned  fail  to 
appear,  the  cost  of  the  summons  was  placed  upon  him,  and  he 
forfeited  the  right  to  make  any  objection  to  the  jurisdiction  of 
the  court.  Then  a  new  citation  was  issued,  and  if  for  a  second 
time  the  defendant  did  not  appear,  additional  costs  were  placed 


14.     'I.  E.  D.  Smith's  Reports  XVII,"  "Historical  Sketch  of  the  Ju- 
dicial Tribunals  of  New  York  from  1623- 1864,"  by  C.  P.  Daly. 

66 


HISTORY  OF  NEW   YORK 

upon  him  and  he  lost  the  right  to  make  any  dilatory  explanation 
or  to  adjourn  or  delay  the  proceeding.  For  a  third  time  he  was 
cited ;  if  he  did  not  then  appear,  the  case  was  heard  and  judgment 
given  in  his  absence,  and  he  was  deprived  of  all  right  of  appeal 
or  review.  It  was,  however,  within  the  power  of  the  court  to 
summon  the  defendant  for  a  fourth  time  and  to  compel  appear- 
ance, if,  upon  hearing  the  case  of  the  plaintiff,  it  developed  that 
an  appearance  of  the  defendant  was  essential  to  a  full  under- 
standing of  the  case. 

Not  often,  however,  was  there  any  difficulty  in  securing  the 
prompt  attendance  of  litigants  for,  as  a  rule,  they  usually 
appeared  in  response  to  the  first  citation.  In  court  the  plaintiff 
was  called  upon  to  state  his  case  and  the  defendant  was  called 
upon  to  make  answer.  Whenever  the  two  parties  differed  in 
material  facts,  the  court  might  put  either  or  both  of  them  to  an 
oath  ;  and  if  under  oath  they  were  still  in  conflict,  the  court  might 
require  the  examination  of  witnesses.  When  a  case  was  thus 
prolonged  it  was  generally  adjourned  until  the  next  day,  and  in 
the  intervening  time  either  party  might  take  the  deposition  of  his 
witnesses  before  a  notary ;  or  the  court  might  require  that  the 
witnesses  should  be  produced  before  it  on  the  adjourned  day  to 
be  orally  examined  under  oath.  Generally,  however,  the  matter 
was  disposed  of  upon  the  first  hearing  of  the  parties  to  the  case, 
without  resort  to  the  oath  or  to  the  examination  of  witnesses. 

If  the  matter  in  controversy  was  intricate,  or  if  the  truth 
could  not  be  readily  discovered,  the  usual  practice  was  to  refer 
the  cause  to  arbitrators,  who  were  always  instructed  to  bring 
about  a  reconciliation  between  the  parties  if  they  could.  This 
practice  was  not  confined  merely  to  cases  of  disputes  about 
accounts  or  to  differences  growing  out  of  contracts,  but  extended 
to  nearly  every  kind  of  case  that  came  before  the  court.    Some- 

67 


LEGAL   AND   JUDICIAL 

times  the  choice  of  arbitrators  was  left  to  the  litigants.  IMore 
often  the  court  appointed  him,  or  directed  one  of  the  schepens  to 
take  the  matter  in  hand  and  try  to  eflFect  reconciliation.  If  recon- 
ciliation was  not  possible,  or  the  litigants  would  not  submit  to  the 
final  determination  of  the  arbitrators,  the  one  dissatisfied  might 
again  bring  the  matter  before  the  court  for  final  disposition. 
References  of  this  sort  were  frequent  upon  every  court  day.  In 
fact,  the  records  show  that  a  large  part  of  the  business  of  this 
tribunal  was  as  a  court  of  conciliation ;  and  it  is  worthy  of  remark 
that,  although  frequently  the  amount  involved  was  considerable, 
or  the  matter  in  dispute  highly  important,  appeals  to  the  court 
from  the  decision  of  the  arbitrators  were  exceedingly  rare. 

When  parties  preferred,  there  was  a  more  formal  mode  of 
proceeding.  After  the  plaintiff  had  stated  his  case,  the  defendant 
might  require  him  to  put  it  in  writing,  and  a  day  was  allowed  for 
that  purpose.  The  defendant  was  then  obliged  to  answer  in 
writing ;  to  this  the  plaintiff  could  reply,  and  the  defendant  rejoin, 
and  there  ended  the  pleadings.  Each  party  then  went  before  the 
notary  of  his  choice  and  had  the  depositions  of  his  witnesses 
reduced  to  writing,  a  draft  or  copy  of  which  was  retained  by  the 
notary  in  a  book  kept  by  him  for  the  purpose.  Where  it  was 
necessary,  a  commission,  or,  as  it  was  called,  a  requisitory  letter, 
might  be  obtained  for  the  examination  upon  interrogation  of  wit- 
nesses residing  beyond  the  jurisdiction  of  the  court ;  these  exam- 
inations were  made  before  the  judge  of  the  local  court  where  the 
witnesses  resided,  and  the  examinations,  after  being  sealed  by  the 
judges,  were  transmitted  to  the  court  having  jurisdiction  of  the 
cause.  When  the  proofs  were  complete,  they  were  added  to  the 
pleadings,  the  whole  constituting  what  was  called  the  memorial, 
which  was  submitted  to  the  court.  Either  party  was  at  liberty  to 
inspect  this  memorial,  and  had  the  right,  within  a  certain  time, 

68 


HISTORY  OF  NEW   YORK 

to  call  any  of  the  witnesses  of  his  adversary  for  further  examina- 
tion upon  cross  interrogatories,  in  respect  to  anything  contained 
in  their  deposition  which  was  deemed  material,  or  to  have  addi- 
tional witnesses  examined  on  his  behalf  in  reply.  The  manner 
of  conducting  these  subsequent  examinations  was  arranged  by 
the  judge. 

But  as  this  mode  of  proceeding  was  dilatory  and  expensive, 
it  was  in  conflict  with  the  innate  sense  of  justice  and  the  natural 
thrift  of  the  Dutch,  and  accordingly  was  rarely  resorted  to.  Most 
cases  were  settled  by  arbitration  or  disposed  of  upon  a  summary 
hearing  of  the  parties  before  the  magistrates.  In  respect  to  the 
rules  of  evidence,  whenever  a  paper  or  document  was  produced 
purporting  or  avowed  to  be  in  the  handwriting  of  a  party,  it  was 
assumed  to  be  his  handwriting  unless  he  denied  the  fact  under 
oath ;  and  merchants  or  traders  might  always  exhibit  their  books 
in  evidence,  where  it  was  acknowledged  or  proved  that  there 
had  been  a  dealing  between  the  parties,  or  that  the  article  had 
been  delivered,  provided  the  books  had  been  regularly  kept  with 
the  proper  distinction  of  persons,  things,  year,  month  and  day — 
"a  practice  which,  in  the  states  of  New  Jersey  and  New  York, 
survived  these  Dutch  tribunals  and  has,  at  the  present  day,  with 
certain  qualifications  or  restrictions,  extended  to  nearly  every 
state  in  the  Union."  Full  credit  was  given  to  all  such  books, 
especially  where  they  were  strengthened  by  oath  or  confirmed 
by  the  death  of  the  parties,  and  also  to  memorandums  made 
between  parties  by  sworn  brokers. 

A  leading  distinction  in  evidence  was  also  made  between 
what  was  termed  full  proof  and  half  proof.  Full  proof  was 
where  a  fact  was  declared  by  two  creditable  witnesses,  as  of  their 
own  knowledge,  or  was  proved  by  a  document  or  written  paper. 
Half  proof  was  where  the  fact  rested  upon  the  positive  declara- 

69 


LEGAL   AND  JUDICIAL 

tion  of  knowledge  by  one  witness  only,  under  which  latter  head, 
as  weak  but  assisting  evidence,  hearsay  was  allowed,  which,  in 
some  instances,  as  in  the  case  of  certain  dying  declarations,  was 
admitted  to  the  force  of  full  proof.  As  the  determining  of  a  case 
upon  the  evidence  of  witnesses  was  left  to  the  judges,  very  dis- 
criminating and  nice  distinctions  were  made  in  adjusting  or 
weighing  its  relative  force  or  value. 

When  judgment  was  rendered  against  a  defendant  for  a 
sum  of  money,  usually  fourteen  days  was  allowed  for  payment  of 
one  half,  with  the  remainder  to  be  paid  in  a  month.  If,  at  the 
expiration  of  that  time,  he  had  not  satisfied  the  judgment,  appli- 
cation could  be  made  to  the  court ;  then  the  schout,  or  the  court 
messenger,  went  to  the  delinquent  and,  exhibiting  a  copy  of  the 
sentence  and  his  wand  of  office,  which  was  a  bunch  of  thorns, 
summoned  him  to  make  satisfaction  in  twenty-four  hours.  If  the 
amount  was  not  then  paid,  the  delinquent  was  again  summoned  to 
pay  within  twenty-four  hours,  which  involved  additional  expense. 
If,  again,  when  that  time  expired,  he  was  still  in  default,  the 
messenger,  in  the  presence  of  a  schepen,  seized  the  debtor's  mov- 
able goods.  These  he  detained  for  six  days,  during  which  time 
they  might  be  redeemed  on  payment  of  the  expenses.  In  case 
they  were  not  redeemed,  notice  was  given  by  publicly  announcing 
upon  a  Sunday,  and  upon  a  law  day,  that  they  would  be  sold,  and 
at  the  next  law  or  market  day  they  were  disposed  of  by  auction. 
In  levying  upon  or  selling  real  estate,  or  what  in  the  civil  law  is 
termed  immovable  property,  a  longer  term  was  allowed,  and 
greater  formalties  were  required. 

The  manner  of  selling  property  thus  levied  upon  was  after 
a  method  common  in  Holland  and  elsewhere  in  Europe.  It  was 
selling  by  "light  of  candle."  At  the  beginning  of  the  sale  a  candle 
was  lighted,  and  while  the  candle  was  burning  the  bidding  went 


HISTORY   OF  NEW   YORK 

on.  When  the  candle  had  burned  out,  the  person  who  had  at 
that  moment  offered  the  highest  price  was  declared  the  purchaser. 
This  method  of  selling  by  "light  of  candle"  was  common  in  the 
other  American  colonies  during  the  fifteenth  and  sixteenth  cen- 
turies. Reference  to  it  will  be  found  in  some  of  the  early  pro- 
vincial newspapers  where  auctions  were  thus  advertised.^  The 
practice  was  brought  from  England  by  the  English  colonists  as 
well  as  by  the  Dutch  from  Holland.  This  method  differed  some- 
what from  the  ordinary  mode  of  Dutch  auctioneering  where  an 
offer  to  sell  the  property  was  made  at  a  price  recognized  to  be 
beyond  its  real  value,  which  price  was  gradually  lowered  or 
diminished  until  a  point  was  reached  where  one  of  the  bidders 
agreed  to  take  it. 

Civil  business  in  the  court  was  large  and  varied.  Actions 
for  the  recovery  of  debts  were  generally  cases  of  disputed 
accounts,  or  of  misunderstandings  between  the  parties,  suits  by 
creditors  to  enforce  payments  from  delinquent  debtors  forming 
only  a  small  proportion  in  the  general  mass  of  this  business. 
There  were  proceedings  by  attachments  against  the  property  of 
absconding  debtors,  or  of  non-residents  or  foreigners,  on  which 
security  was  required  of  the  debtor  intending  to  depart,  to  release 
the  property  from  the  attachment ;  actions  to  recover  the  posses- 
sion of  land,  or  to  settle  boundaries,  "a  proceeding  somewhat 
similar  to  the  relief  offered  by  our  courts  of  equity  upon  a 
revision  of  boundaries ;"  and  actions  to  recover  damages  from 
injuries  to  land  or  to  personal  property,  or  to  recover  specific 
personal  property  as  in  replevin,  or  its  value  as  in  trover.  There 
were  also  actions  for  freight,  for  seamen's  wages,  and  for  rent; 
for  breach  of  promise  of  marriage,  where  the  performance  of 
the    contract    was    enforced    by    imprisonment;    for    separation 


15.    "See  The  Boston  News-Letter,  1704- 1705 -1706,  el  al. 

71 


LEGAL   AND  JUDICIAL 

between  man  and  wife,  in  which  case  the  children  were  equally 
allotted  to  the  parties,  and  the  property  divided,  after  the  pay- 
jnent  of  debts ;  bastardy  cases,  in  which  the  male  was  required  to 
give  security  for  the  support  of  the  child,  and  in  which  both 
delinquents  might  be  punished  by  fine  or  imprisonment.  Actions 
for  assault  and  battery  and  for  defamation  were  quasi  criminal 
proceedings,  punishable  by  fine,  imprisonment,  or  both,  though 
the  defamer  was  generally  discharged  upon  making  a  solemn 
public  recantation  before  the  court,  sometimes  upon  his  knees, 
asking  pardon  of  God  and  of  the  injured  party.  Pecuniary  com- 
pensation for  injuries  to  person  or  character  could  not  be 
enforced ;  though  cases  occurred  in  which  the  defendant  was 
discharged,  it  appearing  that  he  had  made  compensation  to  the 
other  party  in  money  or  goods. 

The  court  also  acted  as  a  court  of  admiralty,  and  as  a  court 
of  probate  in  taking  proofs  of  last  wills  and  testaments  and  in 
appointing  curators  to  take  charge  of  the  estates  of  widows  and 
orphans.  In  1653  application  was  made  to  Stuyvesant  for  liberty 
to  establish  an  orphan  house,  similar  to  the  celebrated  institutions 
of  that  character  which  existed  throughout  Holland.  He  did  not 
think  that  such  an  establishment  was  necessary  at  that  time,  or 
that  the  city  could  afford  the  expense.  Afterwards,  in  1655,  the 
burgomasters  and  schcpens  renewed  their  petition ;  and  this  time 
Stuyvesant  assented  and  established  the  orphanmasters  court 
early  the  following  year. 

A  peculiar  jurisdiction  was  exercised  by  the  court  in  sum- 
moning parents  or  guardians,  who,  without  sufficient  cause,  with- 
held their  assent  to  the  marriage  of  their  children  or  wards,  and 
in  compelling  their  acquiescence.  It  also  granted  pass-ports  to 
strangers,  or  conferred  on  them  the  burgher  right,  a  distinc- 
tion which,  now  that  it  has  ceased  to  be  attended  with  any  prac- 

72 


HISTORY   OF  NEW   YORK 

tical  advantage,  is  still  kept  up  in  the  custom  of  tendering  or 
presenting  the  freedom  of  the  city  to  strangers  as  a  mark  of 
respect. 

It  is  an  interesting  fact  that  the  origin  of  a  fee  bill  for  regu- 
lating, by  a  fixed  and  positive  provision  of  law,  the  costs  of  attor- 
neys and  other  public  officers,  can  be  traced  to  Stuyvesant.  There 
was  much  complaint  that  the  notaries  were  overcharging.  On 
several  different  occasions  Nicholas  De  Meyer,  among  others, 
entered  this  complaint  to  the  director  general  and  council,  and 
in  connection  with  one  of  these  complaints  the  following  exhibit 
was  made : 

For  a  petition 3  guilders,  charged  by  the  notary  14  guilders 

For  a  written  conclusion  .  ■ .  3        "  "'              "            "        12 

For  a  replication  2        "  "              "            "        12 

For  a  deduction   6        "  "              "            "        12 

For  Inventory  of  documents  3        "  "             "            "        12        " 

On  January  25,  1658,  Stuyvesant  put  forth  a  proclamation 
or  ordinance  establishing  a  regular  tariff  of  fees.  In  England 
the  fees  of  attorneys  and  other  officers  of  the  court  have  gener- 
ally been  regulated  by  the  court  and  not  by  any  public  act.  In 
New  York,  however,  the  fees  of  public  officers  have  been  a  mat- 
ter of  public  regulation  from  a  very  early  period.  Ten  or  twelve 
years  after  the  restoration  of  the  province  to  the  English,  they 
were  regulated  by  an  ordinance  of  the  governor,  and  afterwards 
by  acts  of  the  general  assembly;  and  there  is  every  reason  to 
believe  that  this  practice,  especially  as  respects  the  fees  of  attor- 
neys and  officers  of  the  court,  was  derived  from  the  Dutch.  A 
copy  of  Stuyvesant's  ordinance  remains  in  the  records  of  the 
burgomasters  and  schepens: 

"Whereas,  the  Director-General  and  Council  of  N :  Netherland,  have 
sufficient  evidence  by  their  own  experience,  in  certain  bills  of  costs  exhib- 

73 


LEGAL   AND   JUDICIAL 

ited  before  them,  as  remonstrances  and  complaints  of  others  presented  to 
them,  of  the  exactions  by  some  Scriveners,  Notaries,  Clerks  and  other 
licensed  persons  in  demanding  and  collecting  excessively  large  fees,  and 
money,  for  writing  from  contending  persons,  almost  all  sorts  of  instru- 
ments, to  the  manifest,  yea,  insufferable  expense  of  judgments  and  judicial 
costs,  some  led  by  covetousness  and  avarice  so  far,  that  they  are  shamed 
to  make  a  bill  of  or  specify  the  fees  demanded,  but  ask  if  not  extort  it 
from  parties  in  gross.  Therefore,  the  Director  General  and  Council  wish- 
ing to  provide  for  the  better  and  more  easy  administration  of  justice,  here- 
by ordain,  enact  and  command: 

"That  no  person  shall  henceforward  presume  to  draw  up  or  write  any 
public  instruments,  unless  he  be  qualified  or  licensed  thereunto  as  Secre- 
tary, Notary  or  Clerk  by  the  Director  General  and  Council,  which  qualified 
or  licensed  person  shall  be  bound  to  be  satisfied  with  such  fees  as  are 
fixed  by  the  Director  General  and  Council  therefor  and  renew  every  year 
on  the  5th  February  the  established  oath  to  submit  themselves  uncondi- 
tionally to  the  Ordinances  enacted,  or  to  be  according  as  occasion  requires, 
enacted,  regarding  Secretaries,  Notaries  and  Clerks  and  such  like  offices, 
and  to  obey  them  in  manner  as  follows : 

"Firstlj-,  all  Secretaries,  Notaries  and  Clerks  or  such  officials  shall  keep 
a  regular  Record  or  Journal,  in  which  if  necessary  or  required  can  imme- 
diately be  seen  what  is  transacted  before  them,  and  for  what  they  make  a 
demand  of  such  fees  and  render  an  account. 

"Secondly,  No  Secretary,  Notary,  Oerk  or  such  like  official  shall  ask 
money  in  hand  from  any  person  or  take  or  receive  any  presents,  nor  com- 
pound nor  agree  with  any  one  about  fees  or  engrossing  money  to  be  earned, 
as  such  compounding  and  previous  bargaining  before  final  judgment  may 
prove  detrimental  to  the  losing  party  in  case  he  be  condemned  in  the  costs 
and  mises  of  justice;  but  the  aforesaid  officials  or  such  shall  have  them- 
selves paid  for  the  executed  instrument  according  to  this  Ordinance,  or  at 
the  termination  of  the  suit  by  rendering  a  pertinent  bill  or  specification  of 
what  they  have  written,  drawn  out,  or  copied  without  entering  in  such  bill 
or  specification  in  gross  any  extra  costs,  and  all  this  according  to  the  fees 
fixed  therefor,  without  demanding  or  exacting  from  their  principals  any- 
thing else  or  more,  under  penalty  of  their  office  and  fifty  guilders  fine  on 
those,  who  shall  be  found  acting  contrary  hereunto. 

"Thirdly,  the  Secretary,  Notary,  Clerk  or  official  shall  sign  with  his 
own  hand  and  when  required  seal  with  his  signet  all  instruments  executed 
before  him,  on  condition  of  receiving  six  stivers  for  his  seal  in  addition 
to  his  established  fee. 

"Fourthly,  the  Secretaries,  Notaries,  Clerks  and  similar  officials  are 
bound,  when  required,  to  give  acquittance  or  receipts  for  the  earned  and 
paid  fee,  that  the  same  may  be  used  as  needs  be. 

74 


HISTORY   OF  NEW   YORK 

"Finally  and  lastly,  all  Secretaries,  Notaries  and  Clerks  shall  be  bound 
to  serve  the  poor  and  indigent  who  demand  it  as  an  alms,  Gratis  and  for 
God's  sake ;  and  may  ask  and  take  from  the  wealthy  the  following  fees : — 

"For  a  plain  petition  written  on  one  side  of  the  paper  i8  stivers,  and 
if  the  petitioner  will  have  it  booked  or  registered  for  the  copy  12  stivers. 

"For  a  plain  demand  as  above  18  stivers. 

"For  an  answer,  reply  or  rejoinder  engrossing  two  guilders;  copying 
24  stivers;  but  should  the  answer,  reply  rejoinder,  demand  or  petition 
require  more  writing  than  one  half  sheet  of  paper,  for  each  page  of  25  to 
30  lines  .with  each  line  of  30  to  36  letters,  30  stivers. 

"For  a  deduction ;  for  each  page  of  26  to  30  lines  with  30  to  36  letters 
in  the  line,  2  guilders. 

"For  a  petition  in  appeal  to  be  presented  to  the  Director  General  and 
Council  two  guilders  ten  stivers. 

"For  a  petition  or  revision,  reformation,  reduction,  rehearing,  purging, 
complaint,  pardon  or  grant  of  land,  to  be  presented  to  the  Director  Gen- 
eral and  Council  two  guilders  10  stivers ;  if  it  exceed  the  second  or  third 
page,  24  stivers  per  page,  lines  and  letters  as  above. 

"For  a  petition  as  before,  to  some  inferior  Court,  40  stivers  or  20 
stivers  per  page,  lines  and  letters  as  above. 

"For  a  judgment  30  stivers. 

"For  extracts  from  their  books  20  stivers  per  page,  lines  and  letters 
as  above. 

"For  a  contract,  obligation,  assignment,  declaration.  Case  or  deed  30 
stivers;  for  the  copy  20  stivers. 

"For  a  verbal  consultation,  the  matter  being  to  be  brought  before  the 
Director  General  and  Council  20  stivers,  on  condition  the  Notary  is  bound 
to  enter  the  time  and  matter  whereon,  in  his  journal. 

"For  an  inventory  of  documents  to  be  delivered  by  parties,  15  stivers. 

"For  drawing  up  an  interrogatory  and  entering  the  queries  10  stivers 
per  page ;  provided  7  to  8  interrogatories  are  on  one  page ;  for  entering  the 
answers  on  the  opposite  side  also  10  stivers. 

"For  a  days  journey  with  or  without  their  principals,  when  required 
four  guilders,  in  addition  to  conveyance  and  board;  but  going  with  their 
principals  when  requested,  within  the  City,  village  or  place,  20  stivers. 

"For  one  attendance  at  Court,  in  the  absence  of,  or  with,  their  prin- 
cipals 15  stivers,  neglecting  it  they  shall  repair  the  defaults  and  dam- 
age thereof. 

"No  drinking  treats,  nor  any  other  extraordinary  presents,  gifts  or 
douceurs  shall  be  entered  in  any  bill,  nor  demanded  nor  asked  by  the 
Secretaries,  Notaries,  Clerks,  or  similar  officials ;  and  these  preceding  arti- 
cles shall  be  published,  affixed  and  observed  not  only  within  all  places 
■within  this  n.  Netherland  Province  where  men  are  accustomed  to  make 

75 


LEGAL   AND   JUDICIAL 

publication,  but  shall  be  privately  read  by  the  Fiscal,  Schout  and  other 
subaltern  Magistrates  to  the  Secretaries,  Notaries,  Clerks  and  such  like, 
both  now  and  on  the  5th  February  of  every  year,  not  being  Sunday,  in 
their  respective  Boards,  and  take  an  oath  from  them,  that  they  will  strictly 
regulate  themselves  accordingly,  and  in  case  of  refusal  deprive  them  of 
their  office  and  place,  expressly  forbidding  them  directly  or  indirectly  to 
write  any  instruments  for  any  person,  under  a  penalty  of  fifty  guilders  for 
the  first,  twice  as  much  for  the  second  time,  and  for  the  third  offence  to 
be  arbitrarily  punished  at  the  discretion  of  the  Judge.  Thus  done  at  the 
Assembly  of  the  Hon*>'«  Director  General  and  Council  holden  in  Fort  Am- 
sterdam in  N.  Netherland  the  25th  January  A.  1658."" 

When  criminal  cases  were  brought  before  the  court,  the 
schout  appeared  as  plaintiff  and  prosecuted  as  the  representative 
of  the  community.  If  the  evidence  submitted  was  sufficient  to 
warrant  a  magistrate  in  believing  that  an  offence  had  been  com- 
mitted, and  the  schout  made  a  requisition,  the  offender  would  be 
arrested  or  summoned  according  to  the  magistrate's  discretion. 
Where  the  offender  was  detected  in  actual  perpetration  of  the 
deed,  or  where,  in  the  judgment  of  the  officer,  there  was  good 
ground  of  suspicion  against  him,  and  the  public  interest  seemed 
to  demand  his  apprehension,  the  schout  might  make  an  imme- 
diate arrest.  In  all  cases  of  peremptory  arrest  the  schout  was 
obliged  to  notify  the  magistrate  within  twenty-four  hours,  and 
thereupon  the  magistrate  was  bound  to  investigate  the  matter. 
Bail  was  allowed  except  in  cases  of  murder,  rape,  arson  or  trea- 
son. 

A  prisoner  could  be  tried  publicly  upon  general  evidence, 
and  this  was  the  general  method  pursued ;  or  he  might  be 
examined  secretly  in  the  presence  of  two  schepcns,  when  writ- 
ten interrogatories  were  propounded  to  him,  to  which  he  was 
obliged  to  return  categorical  answers.  As  the  Dutch  law  then 
adhered  to   the  general   practice  of  criminal   jurisprudence   in 


16.    "Records  of  New  Amsterdam,"  vol.  II,  p.  316. 

76 


HISTORY  OF  NEJV   YORK 

Europe  in  respect  to  extorted  confessions  from  offenders,  the 
use  of  torture  and  other  inquisitorial  aids  in  theory  prevailed  in 
New  Amsterdam.  Torture,  however,  was  not  used  except  where 
presumptive  proof  amounted  almost  to  certainty,  and  the  test  was 
very  rarely  resorted  to.  In  fact,  criminal  prosecutions  were  not 
frequent,  and  generally  the  offences  were  of  minor  character. 
Punishments  were  most  frequently  by  fines,  and  the  money  thus 
collected  was  distributed  in  three  equal  parts  to  the  sellout,  to  the 
court,  and  to  the  poor.  Imprisonment,  whipping,  confinement  in 
the  pillory,  banishment  from  the  city  or  province,  or  death,  were 
also  methods  of  punishment;  but  death  could  be  inflicted  only 
with  the  concurrence  of  the  governor  and  his  council. 

A  ponderous  dignity  rested  upon  these  magistrates,  and  they 
were  jealous  of  the  slightest  indication  of  any  disrespect  to  them- 
selves or  their  offices.  Instances  were  frequent  where  offenders 
were  summoned  before  the  bench  for  having  insulted  or  spoken 
insultingly  of  a  magistrate,  leaving  "a  sting  not  to  be  borne." 
Several  cases  of  this  kind  have  been  preserved  in  the  records  of 
the  court,  and  they  are  typically  illustrative  of  the  spirit  with 
which  the  magistrates  resented  aspersions  upon  their  characters, 
and  of  the  manner  in  which  they  treated  upon  such  offenders. 

In  September,  1660,  Walewyn  Van  der  Veen  appearing  in 
court,  was  informed  that  it  had  "come  to  the  ears  of  the  magis- 
trates" that,  finding  himself  aggrieved  by  a  previous  judgment 
of  the  court  relative  to  a  protested  exchange,  he  had  "calumni- 
ated the  Magistrates,"  saying  "they  know  not  what  they  are — 
they  are  mere  blockheads,  with  more  of  the  like."  All  this  Van 
der  Veen  denied,  and  thereupon,  the  schout  undertaking  to  prove 
the  truth  of  the  accusation,  further  consideration  of  the  subject 
was  postponed  until  next  court  day.  When  the  case  came  again 
before  the  court,  the  schoiit,  as  plaintiff,  said  that  "the  defendant 

77 


LEGAL   AND   JUDICIAL 

insulted  and  calumniated  the  Magistrates  of  this  City,  having 
spoken  of  them  according  to  evidence  thereof."  At  the  same 
time  he  brought  witnesses  who  testified  that  the  defendant  said, 
"the  IMagistrates  knew  not  what  they  are,  and  were  only  fools 
and  simpletons."  Thereupon  the  officer  demanded  that  the 
offender  should  be  sentenced  to  pray  for  forgiveness  and  to  pay 
a  fine  of  twelve  hundred  guilders  with  costs.  After  due  consid- 
eration the  court  pronounced  its  judgment : 

"Whereas  Walewyn  Van  der  Veen  insulted  the  subaltern  bench  of  jus- 
tice of  this  City  and  spoke  calumniously  of  the  same,  touching  which  the 
Officer  making  his  demand  and  Burgomasters  and  Schcpcns  having  heard 
the  demand  and  proof  of  the  Schout,  adjudge  that  Walewyn  Van  der  Veen 
for  his  committed  insult  shall  here  beg  forgiveness,  with  uncovered  head, 
of  God,  Justice  and  the  Court,  and  moreover  pay  as  a  fine  the  sum  of  one 
hundred  and  ninety  guilders  to  be  duly  applied,  with  costs,  and  in  case  of 
refusal  he  shall  go  immediately  into  confinement." 

It  appears  that  the  defendant  was  obstinate  and  refused  to 
pay  the  sentence  imposed  upon  him ;  accordingly,  he  was  ordered 
by  the  court  "to  go  into  his  house  in  confinement  and  to  be  kept 
there  by  a  Court  Messenger  until  he  shall  have  paid  it."  At  the 
same  time  the  burgomasters  and  schepcns,  still  jealous  of  their 
honor,  transmitted  a  report  of  the  case  and  their  judgment  to  the 
director  general  and  his  council,  and  requested ;  "in  as  much  as 
the  insult  is  destroying  the  authority  and  respect  of  this  Court  of 
Law,  the  support  of  the  Supreme  government  so  that  similar 
occurrences  may  be  prevented."  It  seems  that  the  offender  must 
have  purged  himself  of  the  sentence  imposed  upon  him,  for  he 
appeared  again  as  plaintiff  in  a  case  before  the  magistrates  in  the 
following  January." 

But  Walewyn  Van  der  Veen  seems  to  have  been  persistent  in 
his  outspoken  criticism  of  the  magistrates.     Again,  in  January, 


17.    "Records  of  New  Amsterdam,"  vol.  Ill,  pp.  213,  214,  253. 

78 


HISTORY   OF  NEW   YORK 

1662,  Johannes  Nevius,  secretary  of  the  court,  appeared  on  court 
day  with  another  complaint  against  him ;  the  records  have  it  that 
Nevius  said : 

"That  because  he  refused  to  give  the  deft,  acte  of  the  judgment  of  the 
W:  (orshipful)  Court  against  Mighiel  Tades,  as  he  could  not  get  any 
pay  from  the  deft.,  he  had  been  abused  by  him  as  a  rascal  and  had  said  to 
him — Had  I  you  at  another  place  I  would  teach  you  some  thing  else.  He 
demands,  that  deft,  shall  make  honourable  and  profitable  reparation  for 
the  insult.  *  *  *  The  Officer  (schout)  as  guardian  with  the  Secretary 
says,  that  in  consequence  of  the  slander  and  affront  offered  by  deft,  to 
pltf.  in  scolding  him  as  a  rascal,  etc.,  which  affects  the  honor,  being  a  ten- 
der plant;  also  because  this  Worshipf".  and  Hon^'e  Court  is  not  willing  to 
be  attended  by  a  rascally  Secretary,  concluded  for  a  fine  of  fifty  guilders 
to  be  applied  to  the  discretion  of  this  W :  (orshipfull)  Court,  that  it  may 
serve  as  an  example  to  all  other  slanderers,  who  for  trifles  and  insignifi- 
cances have  constantly  in  their  mouths  curses  and  abuse  of  other  hon- 
ourable people,  whenever  things  do  not  go  just  according  to  their  fancy." 

What  disposition  was  made  of  this  case  does  not  appear,  but 
in  subsequent  years  Van  der  Veen  was  continuously  before  the 
court,  now  as  plaintiff  or  attorney,  and  again  as  defendant. 

In  his  official  communications,  Stuyvesant  was  punctilious 
in  addressing  the  board  as  the  "Honourable,  Beloved,  Faithful, 
the  Sellout,  Burgomasters  and  Sehepens  of  the  City  of  New 
Amsterdam  in  New  Netherland;"  "the  Most  Worshipful,  Most 
Prudent,  and  Very  Discreet,  their  High  Mightinesses,  the  Burgo- 
masters and  Sehepens  of  Nieuw  Amsterdam" ;  "Respected  and 
Particularly  Dear  Friends";  "Most  Worshipful,  Gracious  and 
Distinguished"  or  in  some  similar  phrase.  Nevertheless,  when 
occasion  seemed  to  require,  he  did  not  hesitate  to  arraign  the 
board  in  authoritative  words.  For  example,  in  1654,  the  council 
ordered  that  the  servants  of  the  farmers  should  refrain  from 
"riding  the  goose"  at  the  feast  of  Shrovetide,  but  this  admonition 


18.    "Records  of  New  Amsterdam,"  vol.  IV,  p.  i. 

79 


LEGAL   AND   JUDICIAL 

had  been  disregarded  by  those  against  whom  it  was  directed  and 
the  burgomasters  and  schepens  had  sustained  the  offenders. 
Thereupon  the  director  general  sent  a  communication  to  the  court 
of  the  schout,  burgomasters  and  schepens  reproving  them  and 
reminding  them  that  they  were  only  his  subordinates : 

"The  Director  General  and  Council  appreciating  their  office,  authority 
and  commission  better  than  others,  hereby  notify  the  Burgomasters  and 
Schepens,  that  the  establishing  of  an  Inferior  Court  of  Justice  under  the 
name  and  title  of  Schout,  Bourgotnastcrs  and  Schepens,  or  Commissionaries, 
does  in  no  wise  infringe  on  or  diminish  the  power  and  authority  of  the 
Director  General  and  Council  to  enact  any  Ordinances  or  issue  particular 
interdicts,  especially  those  which  tend  to  the  glory  of  God,  the  best  inter- 
ests of  the  inhabitants  or  will  prevent  more  sins,  scandals,  debaucheries 
and  crimes,  and  properly  correct,  fine  and  punish  obstinate  transactions. 
What  is  solely  the  qualification  of  Schout,  Burgomasters  and  Schepens, 
and  for  what  purpose  they  are  appointed,  appear  sufficiently  from  the  In- 
struction given  to  them,  by  which  they  have  to  abide  and  conform  them- 
selves, without  henceforth  troubling  or  tormenting  the  Director  General 
individually  about  any  enacted  ordinance,  law  or  order,  penalty  or  punish- 
ment issued  or  executed  against  and  concerning  the  contraveners  thereof 
by  previous  resolution  of  the  Director  General  and  Council."" 

As  in  the  preceding  years  of  the  Dutch  administration,  most 
of  the  offences  which  the  magistrates  were  called  upon  to  con- 
sider were  of  comparatively  minor  importance.  The  moral  status 
of  the  city  had  gradually  improved,  but  still  there  remained  much 
chance  for  improvement.  Drunkenness  was  common,  and  not  a 
little  of  the  legislation  of  the  governor  and  his  council  and  the 
judicial  business  of  the  court  related  to  that  offence.  Abusive 
and  slanderous  language,  minor  assaults,  small  violations  of 
municipal  ordinances  such  as  regarded  the  purity  of  flour  and 
the  weight  of  bread,  stealing  from  the  Indians,  transgressions  of 
the  Sabbath  day,  and  so  on, — these  and  offences  of  like  character 
made  up  the  bulk  of  the  business  of  the  court.    There  were  many 


19.    "Records  of  New  Amsterdam,"  vol.  I,  p.  172. 

80 


HISTORY   OF  NEIF   YORK 

disputes  between  neighbors,  such  as  affect  most  village  communi- 
ties, and  these  the  magistrates  were  called  upon  to  settle,  which 
they  generally  did  by  arbitration.  Graver  crimes  were  com- 
mitted, but  not  frequently.  Occasionally  there  was  a  murder  or 
a  robbery,  and  now  and  then  offences  of  sensuality  that  were  of 
serious  character.  Some  of  the  cases  as  recorded  in  the  closing 
years  of  Stuyvesant's  administration  do  not  read  very  differently 
from  those  of  the  years  of  the  Kieft  regime.  Several  of  them 
may  be  quoted  here  as  typical  of  the  judicial  methods  of  arraign- 
ment and  punishment  in  the  period  under  consideration. 

"Cornelius  van  Tienhoven,  as  Sheriff  of  this  City,  represents  to  the 
Court,  that  he  has  found  drinking  clubs,  on  divers  nights  at  the  house  of 
Jan  Peck,  with  dancing  and  jumping  and  entertainment  of  disorderly  peo- 
ple; also  tapping  during  preaching,  and  that  there  was  great  noise  made 
by  drunkards,  especially  yesterday,  Sunday,  in  this  house,  so  that  he  was 
obliged  to  remove  one  to  jail  in  a  cart,  which  was  a  most  scandalous  affair. 
He  demands,  therefore,  that  Jan  Peck's  license  be  annulled,  and  that  he 
pay  a  fine,  according  to  the  Ordinance  and  placards  of  the  Rt.  Hon^ie 
Director  General  and  Council.  The  Worshipful  Court  having  seen  the 
remonstrance  of  the  Sheriff  against  Jan  Pack,  who  being  legally  summoned, 
did  not  appear,  decided,  on  account  of  his  disorderly  house-keeping  and 
evil  life,  tippling,  dancing,  gaming,  and  other  irregularities,  together  with 
tapping  at  night  and  on  Sunday  during  Preaching,  to  annul  his  license,  and 
that  he  shall  not  tap  any  more,  until  he  shall  have  vindicated  himself." 

This  was  October  19,  1654,  and  a  week  later,  upon  confes- 
sion of  guilt  of  the  accused,  the  sentence  was  pronounced.  But 
at  the  next  session  of  the  court,  Jan  Peck  'by  petition'  requested 
leave  to  tap  as  the  court  officer  had  executed  judgment.  Deci- 
sion was  then  postponed,  but  a  week  later  the  court  announced : 

"On  the  instant  request  both  oral  and  written,  of  Jan  Peck  to  be 
allowed  to  pursue  his  business  as  before,  inasmuch  as  he  is  burthened  with 
a  houseful  of  children  and  more  besides,  the  Court  having  considered  his 
complaint  and  that  he  is  an  old  Burgher,  have  granted  his  prayer,  on  con- 
dition that  he  comport  himself  properly  and  without  blame,  and  not  vio- 

81 
6 


LEGAL   AND   JUDICIAL 

late  either  one  or  the  other  of  the  placards,  on  pain  of  having  his  business 
stopped,  without  favor  and  himself  punished  as  he  deserve,  should  he  be 
found  again  in  fault."* 

Records  of  civil  suits  brought  during  the  year   1653,  and 
typical  of  hundreds  of  others  of  the  period,  are  as  follows: 

"Roelof  Jensen,  pltf.,  v/s  Philip  Geready,  deft.,  complains  that  defts. 
dog  has  bitten  him  in  the  daytime,  as  may  be  seen  by  the  wound,  and  he 
claims  for  loss  of  time  and  surgeon's  fees  12FI.  (Florins  or  guilders). 
Deft,  says  plft,  may  kill  said  dog  and  that  pltf.  has  not  lost  any  time  or 
work  on  that  account ;  he,  deft.,  has  already  sent  pltf.  by  his  wife  4  lbs. 
of  butter  and  is  still  willing  to  give  him  as  a  charity  4  fl.  more.  The 
demand  of  pltf.  is  therefore  denied.'"' 

"  'Auken  Jansen,  pltf.,  vs.  Augiistj-n  Heermans,  Deft.,  demands  pay- 
ment of  a  balance  of  one  hundred  guilders  in  beavers  according  to  con- 
tract for  building  deft.'s  house.  Deft,  says  that  pltf.  has  not  fulfilled  his 
contract;  secondly,  that  he  has  spoiled  his  timber  and  the  work;  thirdly, 
that  now,  in  short,  to  prevent  all  disputes,  it  was  agreed  at  pltf's  request, 
that  he  should  give  pltf.  one  beaver  more,  and  if  pltf.  will  not  accept  this, 
then  he  claims  damages  sustained  by  him.  Pltf.  denies  such  agreement ; 
says  he  will  not  be  satisfied  with  one  beaver.  The  Court  do  hereby  ap- 
point Pieter  Wolfersen  and  Franz  Jansen,  both  house-carpenters,  to  in- 
spect work,  and  if  possible  to  affect  a  settlement,  or  otherwise  to  report 
their  opinion  in  writing  to  the  Board." 

"Thomas  Schondtwart,  pltf.,  vs.  Anthony  Jansen,  deft,  says  that  deft., 
whose  daughter  he  has  married,  refused  to  give  him,  what  he  had  prom- 
sied,  and  is  therefore,  according  to  the  written  demand,  due  him.  Burgo- 
masters and  Schepcns  having  heard  the  demand  and  answering  concerning 
the  father's  promise,  refer  the  same  to  David  Provoost  and  Hendrick  Kip 
to  examine  into  the  dispute,  its  origin  and  progress,  and  the  same  by  all 
practical  means  to  settle  and  finally  decide,  and  the  said  arbitrators  are 
impowered,  if  necessary,  to  associate  a  third  person  with  them,  to  whose 
award  parties  shall  be  obliged  to  submit  without  power  to  institute  any 
further  suit."" 

"Elsie  Hendrickx,  pltf.,  vs.  Jacob  Backer,  deft.  Deft,  in  default.  Pltf. 
demands,  as  deft,  fails  to  prove,  according  to  order  of  8th  December  last, 
that  the  2  beavers,  which  he  received  for  the  soap,  were  returned,  and  that 


20.  "Records  of  New  Amsterdam,"  vol.  I,  pp.  255,  259,  261,  264. 

21.  Ibid.,  vol.  I.  p.  82. 

22.  Ibid.,  vol.  I,  p.  119. 
2^.     Ibid.,  vol.  I,  p.  141. 

82 


HISTORY  OF  NEfV   YORK 

the  rendered  judgment  may  be  put  in  execution.  The  Court  having  heard 
the  pltf's  request,  which  consists  with  law  and  equity,  do  order  and  author- 
ize the  Officer  to  levy  execution  either  on  soap  or  anything  else  to  the  sat- 
isfaction of  the  pltf.  with  costs  of  suit.'"" 

An  ingenious ,  if  not  altogether  magisterial,  method  of 
determining  justice  between  plaintiff  and  defendant,  was  that 
adopted  by  the  magistrates  in  a  case  brought  before  them  in  Sep- 
tember, 1655 : 

"Jan  Hackins,  pltf.  vs.  Jacob  van  Couwenhoven  deft.  The  pltf.  de- 
mands payment  of  1150  fl.  on  account  of  a  promissory  note  dated  1st  July, 
1655,  payable  in  beer  and  distilled  liquor.  Dft.  says  his  beer  is  ready. 
Pltf.  denies  that  the  beer  is  ready  and  enquires  if  it  be  allowable  to  mix 
strong  with  small  beer,  and  says  the  beer  is  not  fit  to  be  removed.  Cou- 
wenhoven denies  the  same,  after  adjournment  of  the  session,  and  then  de- 
cide. Parties  being  heard,  Jacob  van  Couwenhoven  was  ordered  to  pay 
pltf.  the  residue  according  to  contract  and  obligations;  And  the  beer  hav- 
ing been  tested  after  the  adjournment  of  the  Court  the  same  was  pro- 
nounced good.    The  pltf.  was,  therefore,  ordered  to  receive  the  same."" 

The  question  of  the  prevailing  rate  of  wages,  which  in  mod- 
em times  has  been  a  matter  of  legal  consideration  and  judicial 
determination,  appears  to  have  troubled  New  Amsterdam  as  early 
as  1665.  At  the  court  session  on  January  16  of  that  year  this 
case  was  presented  and  decided : 

"Adam  Oncklebagh,  pltf.  vs.  Freryck  Felipzen,  deft.  Pltf.  says,  that 
his  wife  strung  a  seawant  for  the  deft,  and  that  the  deft,  will  not  pay  her 
for  the  stringing  as  much  wages,  as  she  gets  from  others.  Deft,  says,  he 
agreed  with  the  pltf's,  wife  to  pay  four  guilders  per  hundred  for  the 
white  and  two  for  the  black,  and  that  his  wife  did  it  again  for  him  after 
that  date.  Pltf.  denies  it.  Parties  again  entering  together  with  the  pltf's 
wife,  the  pltf's  wife  says,  she  made  no  agreement  with  the  deft.,  as  he 
pretends,  and  she  is  to  get  from  her  brother  five  guilders  for  the  white 
and  two  guilders  ten  stivers  per  hundred  for  the  black  seawant.  Bur- 
gomasters and  Schepetis  having  heard  and  examined  parties  decree  as  the  one 


24.  "Records  of  New  Amsterdam,"  vol.  I,  p.  141. 

25.  Ibid.,  vol.    I,  p.  360. 

83 


LEGAL   AND   JUDICIAL 

says,  that  he  had  agreed  with  the  other  and  the  other  denies  it,  that  deft, 
shall  pay  to  the  pltf.  as  wages  for  stringing  according  to  the  customs 
heretofore,  five  guilders  per  hundred  seawant  of  the  white,  and  two 
guilders    ten    stivers,   of    the    black    seawant."" 

The  schont,  or  sheriff,  vi^as  by  far  the  most  important  subor- 
dinate officer  of  the  colony  during  this  period.  His  authority  in 
many  instances  was  almost  supreme,  and  his  duties  were  of  a 
varied  and  important  character.  The  scope  of  his  authority  is 
well  indicated  by  the  schedule  of  instructions  which  were  issued 
for  his  government  at  this  time : 

"i.  In  the  first  place,  the  Sheriff  shall,  as  the  Director  General  and 
Council's  guardian  of  the  law  in  the  district  of  the  city  of  New  Amster- 
dam, preserve,  protect  and  maintain,  to  the  best  of  his  knowledge  and 
ability,  the  pre-eminences  and  immunities  of  the  privileged  West  India 
Company,  in  as  far  as  these  have  been  delegated  by  previous  Instruction  to 
the  Board  of  Burgomasters  and  Schepens;  without  any  dissimulation,  or 
regard  for  any  private  favor  or  displeasure. 

"2.  In  the  quality  aforesaid,  he  shall  convoke  the  meetings  of  Burgo- 
masters and  Schepens  and  preside  thereat,  also  propose  all  matters  which 
shall  be  brought  there  for  deliberation,  collect  the  Votes,  and  resolve  ac- 
cording to  the  plurality  thereof. 

"3.  He  shall,  ex-officio,  prosecute  all  contraveners,  defrauders  and 
transgressors,  of  any  Placards,  Laws,  Statutes  and  Ordinances  which  are 
already  made  and  published  or  shall  hereafter  be  enacted  and  made  public, 
as  far  as  those  are  amenable  before  the  Court  of  Burgomasters  and  Sche- 
pens, and  with  this  understanding  that,  having  entered  his  suit  against  the 
aforesaid  Contraveners,  he  shall  immediately  rise,  and  await  the  judg- 
ment of  Burgomasters  and  Schepens  who  being  prepared  shall  also,  on 
his  motion  pronounce  the  same. 

"4.  And  in  order  that  he  may  well  and  regularly  institute  his  complaint, 
the  Sheriff,  before  entering  his  action  or  arresting  any  person,  shall  perti- 
nently inform  himself  of  the  crime  of  which  he  shall  accuse  him,  without 
his  being  empowered  to  arrest  any  one  on  the  aforesaid  information,  unless 
the  offence  be  committed  in  his  presence. 

"5.  He  shall  take  all  his  information  in  the  presence  of  two  members 
of  the  Board  of  Burgomasters  and  Schepens  if  the  case  shall  permit  it,  or 
otherwise  in  the  presence  of  two  discreet  persons,  who,  with  the  Secretary 
or  his  deputy  shall  sign  the  aforesaid  information. 


26.    "Records  of  New  Amsterdam,"  vol.  I,  p.  360. 

84 


HISTORY  OF  NEW   YORK 

"6.  Which  aforesaid  Secretary  with  the  Court  Messenger  are  ex- 
pressly commanded  to  assist  and  be  serving  unto  the  Sheriff  in  whatever 
relates  to  their  respective  offices. 

"7-  He  shall  take  care  in  collecting  and  preparing  informations  to  act 
impartially,  and  to  bring  the  truth  as  clear  and  naked  as  possible  to  light, 
noting  to  that  end,  all  circumstances  which  in  any  way  deserve  considera- 
tion, and  appertain  to  the  case. 

"8.  Item.  The  aforesaid  Sheriff,  on  learning  or  being  informed  that 
any  persons  have  injured  each  other  or  quarrelled,  shall  have  power  to 
command  the  said  individuals,  either  personally  or  by  the  court  messenger, 
or  his  deputy  to  observe  the  peace,  and  to  forbid  them  committing  any  as- 
sault, on  pain  of  arbitrary  correction  at  the  discretion  of  the  Burgomasters 
and  Schepens. 

"9.  He  shall  not  have  power  to  compound  with  any  person  for  their 
committed  offences  except  WMth  the  knowledge  of  the  Burgomasters  and 
Schepens. 

"10.  He  shall  take  care  that  all  Judgments  pronounced  by  the 
Burgomasters  and  Schepens,  and  which  are  not  appealed  from,  shall  be 
executed  conformably  to  the  above  mentioned  Instruction  given  to  the 
same,  according  to  the  stile  and  custom  of  Fatherland  and  especially  the 
city  of  Amsterdam. 

"11.  In  like  manner,  that  authentic  copies  of  all  the  Judgments 
Orders,  Actes  and  Resolutions  to  be  adopted  by  the  aforesaid  Burgomas- 
ters and  Schepens  shall  be  communicated  once  every  year,  to  the  Direc- 
tor General  and  the  Council  of  New  Netherland. 

"12.  And  in  case  he  receives  any  information  or  statement  of  any 
offences  which  from  their  nature,  or  on  account  of  the  offending  person 
are  not  subject  to  his  complaint,  he  shall  be  bound  forthwith  to  com- 
municate the  same  to  the  Fiscal  (Attorney  Genl.)  without  taking  any  in- 
formation himself,  much  less  arresting  the  offender,  unless  in  actual 
aggression  to  prevent  greater  mischief,  or  hinder  flight  in  consequence  of 
the  enormity  of  the  crime. 

"13.  Which  being  done,  he  shall,  as  before,  surrender  without  any 
delay  the  apprehended  person  with  the  information  taken  to  the  Fiscal, 
to  be  proceeded  against  by  him  in  due  form  as  circumstances  demand. 

"14.  In  order  that  the  aforesaid  Sheriff  shall  be  the  more  encour- 
aged hereunto,  he  shall  enjoy,  etc. 

"15.  Should  the  SheriflF  violate  any  of  these  Articles  he  shall  be 
prosecuted  on  the  complaint  of  the  Fiscal  before  the  Director  and  Council, 
to  be  punished  according  to  the  nature  of  the  case."" 


27.    "Dutch  Records;"  Letter  V,  1652-1663. 

85 


LEGAL   AND   JUDICIAL 

Not  long  after  the  organization  of  this  court  by  Stuyvesant, 
courts  of  the  same  popular  character  were  established  in  several 
towns  on  Long  Island,  and  these  received  powers  similar  to  those 
granted  to  that  in  New  Amsterdam.  Before  this  time,  Brueckelen 
had  a  court  of  schepens  which  was  dependent  on  the  court  at 
Fort  Amsterdam.  Now  her  magistrates  were  increased  from  two 
to  four,  and  Midwout  (Flatbush)  obtained  the  right  to  three 
schepens,  while  to  Amersfoort  (Flatlands)  two  schepens  were 
granted.  In  all  matters  relating  to  police,  peace  and  security  m 
their  several  towns — which  extended  in  criminal  matters  over 
cases  of  fighting,  threatening,  etc., — tliese  courts  had  separate 
jurisdiction.  Offences  of  a  graver  character  were  reported  to 
the  director  and  council  at  Fort  Amsterdam.  In  civil  matters 
these  courts  could  take  cognizance  of  suits  to  the  amount  of  fifty 
guilders.  In  excess  of  this  sum  to  a  further  definite  amount,  an 
appeal  lay  to  a  superior  district  court.  The  latter  court  was  com- 
posed of  magistrates  delegates  from  each  town  court,  and  a 
schout,  who  acted  also  as  clerk.  To  this  district  court  was  also 
committed  the  superintendence  of  such  affairs  as  were  of  com- 
mon interest  to  the  several  towns  represented  in  it,  that  is,  the 
laying  out  of  roads,  the  observance  of  the  Sabbath,  and  the  erec- 
tion of  churches,  schools,  and  other  public  buildings.  It  was  also 
to  a  certain  extent  a  court  of  records. 

David  Provoost,  who  had  been  commissioner  of  Fort  Good 
Hope,  on  the  Connecticut  River,  was  the  first  schout  or  sheriff 
of  this  district  court.  In  January,  1656,  he  was  succeeded  by 
Pieter  Tonneman,  who  acted  until  August,  1660,  when  Adriaen 
Hegeman  was  appointed.  The  salary  of  the  office  was  two  hun- 
dred guilders  a  year,  with  one-half  of  the  civil  fines  imposed  by 
the  court,  and  one-third  of  the  criminal  fines  levied  by  each 
town,  together  with  certain  fees  as  clerk  for  entries  and  tran- 

86 


HISTORY  OF  NEW   YORK 

scripts.  In  1661  courts  similar  to  those  in  Brueckelen,  Midwout 
and  Amersfoort  were  established  at  Bostwyck  (Bushwick)  and 
at  New  Utrecht.  These  towns  were  then  formed  into  a  district 
which  was  called  the  "district  of  the  five  Dutch  towns."  The 
several  town  courts  still  continued  to  exercise  their  independent 
jurisdiction,  but  there  was  one  schout  for  the  district  and  he 
resided  in  Brueckelen. 

Courts  were  established,  by  virtue  of  grants  from  Stuy- 
vesant,  among  the  English  settlers  in  Canorasset,  or  Rutsdorp, 
(Jamaica)  in  1656,  and  in  Middleburgh  (Newtown)  in  1659.  In 
1652  Stuyvesant  established  a  court  in  Beverwyck  (Albany) 
independent  of  the  patroon's  court  of  Rensselaerwyck.  The 
courts  which  have  thus  been  enumerated  and  described,  including 
the  patroon  courts  and  the  appellate  court  in  New  Amsterdam, 
which  was  composed  of  the  governor  and  council,  constituted 
the  judicial  tribunals  of  New  Netherland  until  the  colony  passed 
into  the  hands  of  the  English. 

From  the  beginning  of  their  official  existence,  the  burgomas- 
ters and  schcpens  of  New  Amsterdam  had  demanded  that  when 
their  terms  of  service  were  about  to  expire  they  should  be  allowed 
to  nominate  a  double  number  of  persons  from  whom  their  suc- 
cessors should  be  chosen,  as  a  partial  approximation  to  the  privi- 
leges enjoyed  in  the  Netherlands,  or,  as  they  expressed  it,  "in  the 
beloved  city  of  Amsterdam."  For  a  long  time  Stuyvesant  regu- 
larly refused  this  request  and  continued  the  old  magistrates  from 
year  to  year,  merely  supplying  vacancies.  In  1656,  however,  he 
made  a  partial  concession,  but  only  upon  the  condition  that  the 
old  magistrates  should  always  be  considered  as  re-nominated, 
which  left  it  in  his  power  to  continue  them  precisely  as  he  had 
done  before.  The  condition  was  accepted  by  the  municipal  board, 
and  the  nominations  were  made.     But  Stuyvesant,  being  dis- 

87 


LEGAL   AND   JUDICIAL 

pleased  with  some  of  the  new  names  sent  to  him,  continued  the 
old  magistrates  until  the  time  for  reappointment  came  around  in 
1658.  Then,  at  last,  he  gave  way  completely,  and  selected,  from 
a  double  list  of  names  presented  to  him,  the  magistrates  who  were 
to  serve.  The  burgomasters  and  schepens  then  selected  continued 
in  office  until  1660,  when  new  nominations  and  appointments  were 
made.  Thereafter,  ever)'  year  in  the  month  of  February,  this 
practice  was  continued  until,  with  the  coming  of  the  EngUsh,  the 
organization  of  the  court  was  changed. 

During  the  continuance  of  the  Stuyvesant  government  the 
moral  condition  of  the  city  had  become  considerably  improved, 
showing  very  decided  advance  in  this  respect  over  the  years  of 
Governor  Kieft.  On  the  whole  there  was  probably  no  community 
of  the  English  colonies  which  showed  better  in  this  respect  than 
New  Amsterdam.  The  faults  and  shortcomings  attendant  upon 
frontier  settlements  in  every  new  country  were  naturally  enough 
present,  but  less  extreme  than  might  have  been  expected.  The 
offences  of  most  prevalent  character  were,  generally  speaking, 
of  minor  consequence.  Drunkenness  still  continued  altogether 
too  common,  but  the  vice  was  mostly  confined  to  the  lower  class 
of  the  community.  In  the  records  of  New  Haven  is  the  report  of 
a  case  of  a  Dutchman  who  had  been  arrested  there  for  drunken- 
ness, and  one  of  his  fellow  companions  argued  that  this  could 
scarcely  be  a  grievous  offence  because  "at  the  Mannadoes  they 
were  not  punished  for  drunkenness,  but  used,  after  they  had  been 
drunk,  to  say  that  God  forgive  us,  and  be  merciful  to  us,  and 
that  was  enougn." 

The  authorities  of  New  Amsterdam  were  not,  however,  quite 
so  tolerant  of  the  offence  as  that  testimony  would  indicate.  When 
drunkenness  was  advanced  as  an  excuse  for  crime  which  had 
been   committed,   the   court   generally   declared   that    this   was 

88 


HISTORY  OF  NEW  YORK 

frivolous.  Governor  Stuyvesant  and  his  council  as  well  as  the 
city  officials  were  constantly  endeavoring  to  limit  the  sale  of 
intoxicants  to  the  white  people,  and  interdicted  it  completely  in 
the  case  of  the  Indians. 

More  often  than  for  more  grievous  offences,  men  and  women 
were  summoned  to  court  for  indulging  in  abusive  and  slanderous 
language,  for  cutting  trees  on  leased  land,  for  allowing  pigs  to 
damage  fences,  or  for  minor  assaults  upon  their  neighbors.  Small 
quarrels  were  not  infrequent,  and  pubHc  disturbances  broke  out 
now  and  then,  mostly  caused  by  intoxication.  Municipal  ordi- 
nances were  violated,  such  as  cheating  in  regard  to  the  size  of 
beer  barrels,  the  purity  of  flour  and  the  weight  of  bread,  all 
which  were  fixed  by  the  laws  and  ordinances.  Instances  of 
wrongfully  packing  of  tobacco,  the  selling  of  diseased  hogs,  rob- 
bery of  Indians,  and  the  shooting  of  wild  fowls  in  the  forest  on 
Sunday,  were  often  brought  up.  There  was  less  integrity  on  the 
part  of  the  citizens  in  their  dealings  with  the  West  India  Com- 
pany. Public  feeling  against  the  company  was  so  general  that 
efforts  to  defraud  it  were  not  looked  upon  with  the  disfavor 
that  dishonesty  among  the  citizens  themselves  was  regarded. 
Smuggling,  which  had  been  a  common  practice,  still  continued, 
despite  the  severe  ordinance  published  by  Stuyvesant  immediately 
after  his  arrival  in  1647.  Efforts  to  avoid  the  custom  duties 
became  so  insistent  that  the  governor  was  compelled  to  set  special 
watch  to  detect  offences  of  this  character. 

In  1648  a  tavern  was  closed  because  a  man  had  been  mur- 
dered there,  but  criminal  cases  were  very  rare,  and  it  was  not 
often  that  death  sentences  were  pronounced.  Most  frequently 
in  cases  of  capital  crime,  where  the  death  penalty  was  imposed, 
the  sentence  would  be  commuted  at  the  last  moment  to  banish- 
ment, or  some  like  lesser  punishment.    In  the  records  there  are 

89 


LEGAL   AND   JUDICIAL 

reports  of  individuals  accused  with  grave  crimes  being  threatened 
with  the  rack  in  order  to  extort  confession  from  them,  but  it  does 
not  appear  that  torture,  which  at  that  time  was  not  an  uncommon 
practice  in  Europe,  was  here  often  resorted  to. 

The  general  opposition  to  excessive  tippling  was  shown  fre- 
quently during  the  directorship  of  Stuyvesant  by  the  ordinances 
which  were  now  and  again  issued,  as  occasion  seemed  to  demand. 
Tavern  keepers  were  obliged  to  register  their  names  in  the  office 
of  the  company  and  take  out  a  license.  In  1647  there  were 
twelve  licensed  tavern  keepers  in  the  city.  Licenses  were  quickly 
withdrawn  for  various  reasons.  In  some  instances  the  keepers 
did  not  pay  promptly.  The  excise  tax  on  beer  and  wine  began, 
and  if  any  disturbances  happened  in  the  tavern  the  license  was 
withdrawn.  Gerrit  Jansen  Clomp  had  been  drinking  in  the  house 
belonging  to  Abraham  Pietersen,  and  in  a  quarrel  had  been  killed. 
Accordingly,  the  license  of  Pietersen  to  sell  liquor  either  for  use 
in  his  house  or  to  be  carried  away,  was  taken  from  him. 

Under  the  excise  provision  the  question  of  patent  medicines 
arose.  Pieter  Le  Febre,  a  French  Huguenot,  petitioned  for  per- 
mission to  sell  a  certain  water  prepared  by  him  for  medicinal 
uses.  The  permission  was  given,  but  a  doubt  arose  in  the  minds 
of  the  council  as  to  the  legality  of  their  action,  because  brewers, 
wholesale  dealers  and  distillers  were  not  allowed  to  keep  a  tavern 
and  sell  at  retail.  In  the  end,  however,  an  exception  was  made  in 
favor  of  the  petitioner,  and  permission  was  given  to  him  to  sell 
both  at  wholesale  and  at  retail.  This  occurred  in  1653,  and  it 
appears  to  be  the  first  record  of  the  sale  of  patent  medicines  in 
New  Amsterdam. 

In  the  two  decades  which  immediately  preceded  the  end  of 
Dutch  rule  in  New  Netherland,  the  state  had  been  gradually 
becoming  a  republic;    as  the  West  India  Company  admitted,  it 

90 


HISTORY  OF  NEfV   YORK 

could  no  longer  be  considered  a  little  colony.  Struggle  for  eman- 
cipation from  the  proprietary  rule  of  the  company  had  slowly 
but  surely  resulted  in  larger  rights  and  greater  freedom  for  the 
citizens.  They  had  succeeded  in  securing  for  themselves  sub- 
stantial participation  in  their  own  government,  answerable  to 
the  Fatherland  directly  rather  than  to  the  dominating  rule  of  the 
company.  Still  they  were  far  from  being  satisfied,  and  in  no 
wise  relinquished  their  efforts  to  secure  more  and  greater  pow- 
ers and  privileges,  with  the  view  of  ultimately  freeing  them- 
selves entirely  from  the  company.  On  the  other  hand,  the  com- 
pany, despite  the  fact  that  its  colonization  plans  had  largely  failed 
and  that  it  was  nearly  bankrupt,  continued  to  scheme  for  holding 
on  to  what  it  claimed  as  proprietor,  in  order  to  further  develop 
the  country  and  to  bring  about  an  increase  in  colonization. 

Thus  things  stood  in  the  autumn  of  1663.  In  addition  to 
the  struggle  which  had  been  for  years  carried  on  against  the  com- 
pany, the  community  had  serious  troubles  which  were  gradually 
assuming  more  and  more  gravity.  For  a  long  time  the  people  of 
Long  Island  who  constituted  part  of  the  colony  which  was  con- 
trolled from  New  Amsterdam  had  been  disaffected.  Towns 
which  had  been  settled  by  English  speaking  colonists  from  Con- 
necticut and  Massachusetts  were  still  strenuously  opposed  to 
yielding  allegiance  to  the  authority  of  Governor  Stuyvesant,  and 
the  controversies  between  New  Amsterdam  and  the  authorities 
of  New  Eingland  were  growing  in  number  and  becoming  more 
and  more  acute.  Meantime,  in  England,  King  Charles  and  his 
advisers  were  plotting  for  the  capture  of  New  Amsterdam,  and 
in  these  plans  the  invasion  of  Long  Island  by  Captain  John 
Scott  was  an  enterprise  of  considerable  moment.  Slowly  but 
surely  it  was  developing  that  the  English  had  determined  to  secure 
Manhattan  at  all  cost,  and  the  little  community  could  not  fail 

91 


LEGAL   AND   JUDICIAL 

to  recognize  the  fate  that  was  in  store  for  it  unless  it  could 
secure  help  from  the  Fatherland. 

In  this  emergency  the  magistrates  of  New  Amsterdam  con- 
sidered it  imperative  that  they  should  have  the  aid  of  the  other 
communities  in  the  province,  and,  upon  their  request,  the  governor 
summoned  delegates  from  the  various  towns  to  meet  in  conven- 
tion. On  November  i  the  representatives  of  New  Amsterdam, 
New  Harlem,  Bergen,  and  the  five  Dutch  towns  of  Long  Island 
met  in  the  Stadt  Huys  in  a  gemeene  landts  vergaderingh  (a  Gen- 
eral Convention  or  Diet).  No  delegates  from  the  English  towns 
were  present  at  this  convention,  which  drew  up  a  remonstrance  to 
the  Amsterdam  Chamber  of  the  West  India  Company  in  regard 
to  the  situation.  In  April  of  the  following  year  another  conven- 
tion was  called  and  met  in  New  Amsterdam.  Two  delegates  from 
each  of  twelve  communities — New  Amsterdam,  New  Harlem, 
Staten  Island,  Bergen,  the  five  Dutch  towns  of  Long  Island, 
Wiltwyck,  Fort  Orange,  Beverwyck,  and  Rensselaerwyck, — were 
present,  and  organized  a  landtsdag  or  (landts  verdager  veins). 
Over  this  landtsdag  Jeremiah  Van  Rensselaer  was  chosen  to  pre- 
side. Little  was  done  except  to  vote  a  complaint  to  the  West 
India  Company  for  not  protecting  the  colony  against  the 
encroachments  of  the  English.  This  convention  and  the  one 
which  preceded  it  the  year  before  were  the  only  two  gatherings 
of  their  kind  that  had  been  called  since  the  establishment  of  the 
city  government  in  1653.  Although  they  accomplished  almost 
nothing,  yet  the  fact  remains  that  in  their  composition  and  in 
their  assembling  they  were  plain  concessions  to  the  demands  of 
the  people  for  an  active  participation  in  the  administration  of 
home  affairs. 

As  often  as  the  histories  of  New  Amsterdam  and  New 
York  have  been  written,  the  story  of  the  summer  of  1664  has 

92 


HISTORY  OF  NEW   YORK 

been  told,  and  there  is  no  call  to  repeat  it  in  this  connection. 
Toils  were  closing  around  the  devoted  Dutchmen  and  their  impe- 
rious governor,  and  it  was  only  a  question  of  weeks  and  days 
when  the  curtain  should  finally  ring  down  upon  the  scenes  of  the 
Dutch  exploitation  of  New  Amsterdam  and  New  Netherland. 


93 


CHAPTER  III 

Dutch  Magistrates  and  Lawyers 


CHAPTER  III 

Dutch  Magistrates  and  Lawyers 

1626 — 1664 

MEMBERS  OF  THE  GOVERNORS'  COUNCILS — POPULAR  LEADERS  IN 
THE  EARLY  MOVEMENTS  FOR  HOME  GOVERNMENT — THE 
ADVISERS  WHO  WERE  SUMMONED  BY  KIEFT  AND  STUYVESANT, 
THEIR  CHARACTERS  AND  THEIR  SERVICES — THE  SCHOUTS,  THE 
BURGOMASTERS  AND  THE  SCHEPENS — THEIR  INNATE  SENSE  OF 
RIGHT  AND  WRONG,  THEIR  KNOWLEDGE  OF  DUTCH  LEG^VL  FORMS 
AND  THEIR  WHOLESOME  ADMINISTRATION  OF  JUSTICE — LAW- 
YERS AND  ATTORNEYS  OF  THE  PERIOD. 

In  everything  that  goes  to  make  up  ambition,  enterprise,  and 
sterhng  character  generally,  the  Dutchmen  who  came  to  the 
island  of  Manhattan  and  established  the  city  of  New  Amsterdam 
and  the  colony  of  New  Netherland  compared  favorably  with  the 
pioneers  in  any  of  the  other  colonies  of  America.  It  has  been 
somewhat  the  fashion  to  consider  them  dull,  slow-witted  and 
slothful.  Not  only  has  that  been  to  a  considerable  extent  the 
popular  assumption  concerning  these  adventurers,  but  the  same 
view  has  been  held  by  historians  of  prominence  who  should  have 
been  either  better  informed,  less  biased,  or  more  judicial  in  tem- 
perament. For  nothing  could  be  further  away  from  the  actual 
truth  than  this  estimate  of  the  first  Dutchmen  in  America. 

It  may  be  conceded  that  the  settlers  from  Holland  who  held 
Manhattan  for  nearly  half  a  century  and  thence  spread  over  the 
western  end  of  Long  Island,  the  shores  of  the  Hudson  and  the 

97 


LEGAL   AND   JUDICIAL 

interior  of  New  York,  were  not  as  a  whole  highly  intellectual. 
Few  of  them  were  of  noble  rank  or  came  of  families  of  wealth  or 
of  military  or  civic  distinction ;  not  many  were  graduates  of  uni- 
versities or  colleges,  or  even  had  superior  education.  In  this 
respect  they  were  to  a  marked  degree  differentiated  from  their 
near  neighbors  in  New  England.  In  that  section  of  the  country, 
the  Pilgrims  who  came  to  Plymouth  in  1620  were  not  of  superior 
type  so  far  as  educational  attainments  were  concerned.  But  the 
Puritans  who  founded  the  Massachusetts  Bay  Colony  were  of 
different  stamp.  In  the  small  population  which  existed  in  and 
near  Boston  in  the  second  quarter  of  the  seventeenth  century, 
there  were  not  less  than  a  hundred  or  more  who  had  been  grad- 
uated from  the  universities  of  Cambridge  and  Oxford.  This  was 
an  unusually  large  proportion  for  any  colonial  settlement  in  its 
early  history,  and  these  men  gave  to  the  new  communities  a  dis- 
tinctly intellectual  tone  such  as  New  Amsterdam  could  in  no  wise 
claim. 

Comparison  between  the  Dutch  colony  of  New  Netherland 
and  the  English  speaking  people  of  New  England  and  those 
further  south  in  Virginia  and  Maryland,  has  often  been  made 
to  the  point  of  discrediting  the  former.  Nevertheless,  although, 
as  has  just  been  said,  the  Dutchmen  did  not  have  the  intellectual 
attainments  of  the  New  Englanders,  nor  were  of  high  bred  and 
wealthy  families  like  the  leaders  in  Virginia  and  Maryland,  they 
were  not  lacking  in  those  best  qualities  of  an  energetic  manhood 
which  preeminently  adapted  them  for  the  task  which  they  under- 
took and  carried  on  for  nearly  fifty  years.  That  they  were  strong, 
self-contained  citizens,  earnestly  engaged  in  the  work  of  improv- 
ing their  own  fortunes,  of  materially  developing  a  new  country, 
and  of  laying  the  foundation  for  a  new  body  politic,  does  not 
admit  of  doubt. 

98 


HISTORY  OF  NEW   YORK 

In  the  period  to  which  they  belonged, — the  first  half  of  the 
seventeenth  century, — Holland  was  one  of  the  great  nations  of 
Europe.  In  national  integrity,  in  commercial  enterprise,  and  in 
devotion  to  democratic  institutions,  it  was  second  to  no  other 
nation  of  Europe.  In  commerce  particularly  it  was  preeminent. 
Dutch  ships  sailed  the  waters  of  every  part  of  the  globe.  As  the 
historian  Motley  has  expressed  it,  "they  were  the  first  free  nation 
to  put  a  girdle  of  empire  around  the  world."  Small  as  the  coun- 
try was,  it  had  above  one  hundred  thousand  sailors  and  upward 
of  three  thousand  ships,  while  as  many  as  fifteen  or  more  Dutch 
navigators  had  achieved  reputation  as  successful  explorers  in 
distant  parts  of  the  world.  Holland  merchants  were  noted  for 
their  enterprise,  and  had  grown  rich  and  strong  in  dealing  with 
far-away  foreign  peoples.  They  had  succeeded  to  the  heritage 
of  the  old-time  merchantmen  of  Venice.  The  statesmen  of  Hol- 
land were  the  peers  of  any  of  their  contemporaries,  and  in 
diplomacy  they  achieved  international  success.  Willing  and  able 
soldiers  in  defence  of  the  Fatherland,  they  had  won  many  a  hard 
fought  battle,  particularly  against  the  Spanish  invaders.  A  code 
of  laws  had  long  been  in  force  in  Holland,  thoroughly  adapted 
to  the  right  adjustment  of  affairs  between  man  and  man  and  the 
control  of  the  community,  and  these  laws  were  admirably  en- 
forced. No  taxation  without  representation  was  a  principle 
recognized  by  them  long  before  the  English  colonists  in  New 
England  adopted  it  as  a  shibboleth.  They  had  a  good  system  of 
free  schools,  and  were  tolerant  of  all  religious  creeds  and  forms 
of  worship.  The  dissenting  Puritans  recognized  and  availed 
themselves  of  this  latter  virtue  of  the  Hollanders  when  they 
removed  themselves  from  Scrooby  to  Amsterdam  and  Leyden  to 
escape  the  persecutions  of  the  Established  Church  of  England. 
As  has  been  well  said  by  one  historian,  "it  was  in  short  the  high 

99 


LEGAL   AND   JUDICIAL 

water  mark  in  Dutch  patriotism,  Dutch  pluck,  Dutch  intelligence, 
Dutch  genius."  Whether  we  turn  to  commerce,  to  science,  or  to 
art,  there  were  cultivation,  emancipation  from  old  to  new,  and  tri- 
umphs which  were  historic. 

Bom  and  reared  in  such  surroundings  and  under  such  influ- 
ences, the  Dutch  who  came  to  the  new  world  were  in  no  sense 
unworthy  of  their  nationality.  Although,  as  has  been  before 
noted,  not  many  of  them  were  highly  educated,  they  were  thor- 
oughly well  adapted  to  the  work  which  they  had  cut  out  for  them- 
sdves,  and  then  engaged  in  it  with  a  sound  determination,  a 
sturdy  honesty,  and  an  enterprise  that  entitled  them  to  recog- 
nition and  admiration.  In  that  narrow  sphere  they  emulated  the 
enterprise  and  the  virtue  of  the  people  from  whom  they  were 
derived.  In  small  ships  they  sailed  the  waters  that  skirted  the 
American  continent  from  Maine  to  Georgia.  They  navigated  the 
rivers  into  the  interior,  and  planted  settlements  on  the  borders  of 
the  Indian  territory,  far  to  the  Northwest.  Their  selection  of 
Manhattan  as  the  center  of  their  activities  and  as  the  subsequent 
capital  of  their  province,  showed  that  they  possessed  foresight 
to  a  remarkable  degree,  and  real  genius  in  comprehending  the 
infinite  future  possibilities  of  Manhattan  Island  as  the  great 
trading  entrepot  of  the  new  world. 

Soon  after  the  coming  of  the  first  colonists,  began 
the  agitation  for  a  local  self-government  free  from  the 
autocratic  control  of  the  proprietory  West  India  Company, 
and  for  the  establishment  of  the  laws,  customs  and  priv- 
ileges to  which  they  had  been  accustomed  in  the  old  country. 
Then,  when  the  population  began  to  extend  beyond  New  Amster- 
dam, they  promptly  organized  townships  and  local  courts,  and 
thus  laid  the  foundation  for  a  future  political  entity.  All  this  was 
accomplished  by  men  who  were  in  no  sense  of  high  class,  being 

lOO 


HISTORY  OF  NEW   YORK 

for  the  most  part  laborers,  artisans,  clerks,  or,  in  later  years,  mer- 
chants and  traders ;  and  it  is  even  more  remarkable  that  these 
things  were  achieved  in  the  face  of  first  the  opposition  and  after- 
wards the  neglect  of  the  strong  West  India  Company  of  the 
Fatherland,  with  its  undoubted  influence  upon  the  States  General, 
and  also  the  autocratic  authority  of  the  governors  whom  the  com- 
pany sent  to  rule  New  Netherland. 

Taken  altogether,  the  record  of  the  fifty  years  of  Dutch 
habitation  of  New  Netherland  was  very  far  from  being  of  the 
negative  quality  which  some  historians  would  have  us  believe. 
New  Amsterdam  was  in  no  wise  "the  sleepy  Dutch  village"  that 
it  has  been  sometimes  denominated,  and  the  Dutch  burghers  were 
not  altogether  given  over  to  their  mugs  of  beer  and  their  pipes 
of  tobacco.  The  student  of  that  period  will  note  that  almost 
immediately  after  the  first  immigrants  had  become  fairly  settled, 
they  began  to  revolt  against  the  rule  of  the  West  India  Company, 
and  to  start  that  agitation  for  self-government  which  ended  in 
the  final  forcing  of  the  privileges  of  suffrage,  of  local  courts,  and 
of  municipal  government,  from  the  hands  of  the  company.  This 
in  itself  was  a  great  achievement  to  be  brought  about  within 
twenty-five  years.  It  needs  no  deep  insight  to  comprehend  that 
New  Amsterdam  was  anything  but  a  sleepy  village  during  that 
period. 

The  struggle  of  the  commonalty  and  its  able  represent- 
atives against  the  exactions  of  the  governors  and  the  determina- 
tion of  the  West  India  Company  to  control,  was  always  active, 
never  ceasing,  and  often  virulent.  It  was  the  work  of  men  who 
were  of  sturdy,  resolute  character,  firmly  grounded  in  the  demo- 
cratic principles  of  the  Fatherland,  and  determined  to  brook  no 
opposition  that  stood  in  the  way  of  their  attaining  their  ends. 
In  New  Amsterdam  and  in  the  other  villages  there  was  continu- 

lOI 


HISTORY  OF  NEW   YORK 

ous  agitation  in  public  and  in  private.  Affairs  of  state, — and 
they  were  certainly  important  affairs,  fraught  with  great  things 
for  the  future, — were  discussed  on  the  street  corners,  at  the 
tapsters  and  in  the  privacy  of  homes.  The  meetings  of  the  gov- 
ernor and  council  were  often  stormy,  and  in  the  representatives 
of  the  commonalty,  who  from  time  to  time  appeared  before  them 
in  defence  and  demand  of  the  rights  of  the  people,  the  officials 
met  their  peers  in  argument,  patriotic  determination  and  energy. 
Some  of  the  documents  which  that  struggle  for  political  control 
brought  out  have  become  historic.  They  were  the  production  of 
men  of  natural  activity  of  mind,  and  of  earnest  convictions,  who 
were  masters  of  clear  methods  of  expression.  In  the  literary  sense 
they  may  not  have  been  equal  to  the  didactic  and  religious  tracts 
which  the  leaders  of  New  England  put  out  at  that  time,  but  as 
the  full  expression  of  manhood,  and  of  wholesome  devotion  to 
democratic  principles,  they  will  stand  comparison  with  the  ablest 
productions  of  the  kind  that  the  world  has  ever  known.  No  one 
can  read  the  famous  Remonstrance  of  the  Board  of  Nine  Men 
against  Governor  Kieft ;  the  various  petitions  of  the  different 
Boards  of  Men  to  the  governors,  to  the  West  India  Company,  or 
the  States  General ;  the  petition  of  Kuyter  and  Melyn  to  Stuy- 
vesant,  in  1647,  ^"d  the  answer  of  the  same  leaders  to  Governor 
Kieft,  making  allegations  respecting  the  war  against  the  Indians ; 
without  instinctively  recognizing  the  statesmanlike  quality  of  the 
productions,  and  the  masterly  minds  of  these  men  in  the  handling 
of  the  subject  which  was  nearest  their  hearts.  Certainly  New 
Amsterdam  was  a  serious  minded  place  at  that  time,  and  it  can- 
not be  doubted  that  the  views  thus  strongly  expressed  by  the 
leaders  and  preserved  in  the  old  records  sufficiently  voiced  the 
spirit  and  the  temper  of  the  whole  people,  and  stamped  them  as 
men  of  intelligence,  enterprise,  sobriety  and  democratic  spirit. 

102 


HISTORY  OF  NEW  YORK 

"The  mental  caliber  of  the  New  Netherlanders  may  be  tested  by  read- 
ing the  bulky  volumes  which  contain  translations  of  their  public  papers — 
popular  petitions,  complaints,  and  expositions,  official  journals,  reports, 
manifestoes,  and  letters.  Many  of  them  besides  the  Remonstrance  of 
1649  have  the  high  merit  of  logical  arrangement,  lucidity  and  dignity.  All 
have  a  simplicity  in  strong  contrast  to  the  turgid  rhetoric  in  which  the 
New  Englanders  often  delighted.  Some  have  a  flavor  of  scholarship, 
literary  skill,  and  individuality  which  persists  even  in  the  alien  language. 
If  none  of  them  has  as  vivid  a  picturesqueness  as  the  New  Englander  and 
the  Virginian  now  and  then  achieved,  on  the  other  hand  those  that  deal 
with  the  features  and  the  products  of  the  little-known  Western  world  are 
much  more  sane  and  scientific  in  spirit  than  contemporary  essays  in  Eng- 
lish. If  none  has  the  same  sort  of  historical  value  as  the  chronicles  of 
Bradford  and  Winthrop,  some  have  a  descriptive  value  unmatched  in 
other    early    colonial    records.'" 

"In  short,  it  is  not  more  justifiable  to  think  of  New  Amsterdam  as 
a  slow-witted,  illiterate  place,  than  as  a  drowsy,  uneventful  place.  The 
more  closely  we  read  its  chronicles  in  the  words  of  its  own  founders 
and  fosterers,  the  more  clearly  we  perceive  how  civilized,  how  modern,  it 
was  in  its  essential  habits  of  mind.  If  an  American  of  to-day  could  be 
transported  back  two  hundred  and  fifty  years  he  would  find  himself 
more  comfortably  at  home  on  Manhattan  than  anywhere  else.  In  some 
of  the  English  settlements  he  would  have  the  chance  to  exercise  more 
direct  political  power,  but  in  none  excepting  Rhode  Island  would  he 
find  as  much  personal  freedom,  and  in  none  at  all  a  general  mental  atti- 
tude, a  prevailing  temper,  as  similar  to  the  temper  of  the  America  of 
to-day.'" 

In  broader  fields  of  activity  they  accomplished  things  that 
entitle  them  to  more  than  ordinary  recognition.  When  they  were 
called  upon  to  consider  inter-colonial  affairs  and  to  act  thereupon 
they  exhibited  energy  and  determination  as  they  did  in  their 
domestic  affairs.  Many  instances  of  this  character  were  of  more 
than  temporary  importance.  Their  achievement  in  suppressing 
the  Swedes  who  had  settled  in  Delaware,  a  performance  in  which 
Governor  Stuyvesant  had  the  fullest  freedom  and  responsibility, 
added  much  to  their  prestige,  and  would  have  given  Holland  a 

1.  "History  of  the  City  of  New  York  in  the  Seventeenth  Century," 
by  Mrs.  Schuyler  Van  Rensselaer,  vol.  I,  p.  480. 

2.  Ibid,   vol.    I,   p.   483. 

103 


LEGAL   AND   JUDICIAL 

valuable  addition  to  its  territory  had  it  been  able  permanently  to 
retain  New  Netherland.  Constantly  in  contention  with  the  New 
Englanders,  they  bravely  held  their  own  in  most  particulars. 
Although  in  the  end  the  English  prevailed  in  keeping  the  Dutch- 
men away  from  Connecticut,  the  latter  still  succeeded  in  holding 
Long  Island,  despite  the  large  English  population  there,  and  in 
all  their  disputes,  whether  in  warfare  or  diplomacy,  they  won  the 
complete  respect  of  their  opponents  as  worthy  antagonists. 

Despite  the  foolish  conduct  of  Kieft  toward  the  Indians,  the 
people  generally  lived  on  \try  good  terms  with  their  savage 
neighbors.  But  when  it  came  to  force  they  were  ready,  and  they 
were  successful  in  keeping  the  Indians  at  a  respectful  distance 
save  upon  those  occasions  when  the  natives  were  provoked  by  the 
atrocious  acts  of  Kieft  and  some  of  his  followers.  One  of  their 
most  noteworthy  achievements  was  the  holding  of  the  Hudson 
River  and  the  Mohawk  country  against  the  French  and  the  In- 
dians of  that  section  who  were  allied  with  the  French.  The 
French  in  Canada  recognized  that  the  Mohawk  country  and  the 
Hudson  constituted  the  key  to  this  section  of  the  continent,  and 
their  constant  efforts,  sometimes  undisguised  and  again  insidious, 
were  in  the  direction  of  acquiring  control  of  that  great  highway. 
Had  they  succeeded  they  would  have  split  the  country,  separating 
New  England  entirely  from  the  then  known  western  section,  and 
securing  for  themselves  a  control  that  even  the  English  in  later 
years  might  have  found  much  more  difficult  to  overthrow  than 
they  finally  did.  In  steadily  forcing  the  French  back  into  Canada 
and  preventing  them  from  carrying  out  their  purpose  in  this  re- 
spect, the  Dutch  of  New  Amsterdam  accomplished  a  great  work 
that  was  fraught  with  important  results  to  the  English  who  suc- 
ceeded them,  and  for  which  they  have  never  received  the  full 
credit  that  is  their  due. 

104 


HISTORY  OF  NEW  YORK 

New  Netherland  was  to  a  marked  degree  the  home  of  re- 
ligious and  political  freedom,  and  the  broadmindedness  of  its 
Dutch  citizens  was  repeatedly  manifested.  In  Massachusetts  the 
Puritans  hung  supposed  witches  and  Quakers,  and  whipped  and 
banished  Roger  Williams  and  his  followers  from  the  colony. 
Many  of  these  offenders  against  Puritanism  found  refuge  in  New 
Netherland,  and  rarely  were  they  disturbed  for  their  political  or 
religious  views.  Anne  Hutchinson,  expelled  from  Massachusetts 
and  from  Rhode  Island,  fled  to  Westchester  and  there  lived  un- 
disturbed until  she  and  her  children  were  massacred  by  the  In- 
dians in  the  uprising  provoked  by  Kieft  in  1643.  The  history  of 
Westchester  and  Long  Island  abounds  in  evidence  of  the  re- 
ligious tolerance  of  the  Dutch  manifested  particularly  toward  the 
wanderers  from  New  England  who,  persecuted  for  their  faith, 
found  safe  refuge  there.  The  Reverend  Francis  Doughty  came 
hither  from  Massachusetts  and  settled  on  Long  Island,  and  John 
Throgmorton  with  thirty-five  families,  Anabaptist  refugees  from 
Salem,  Massachusetts,  came  to  Westchester.  Captain  John  Un- 
derbill, famous  soldier,  was  a  refugee  from  the  ecclesiastical  dis- 
cipline of  New  England  and  took  service  with  the  Dutch.  Lady 
Deborah  Moody,  excommunicated  from  the  church  in  Salem, 
found  a  peaceful  home  in  Gravesend,  Long  Island.  Father  Jogues 
and  Father  Bressoni,  Jesuit  priests,  were  rescued  from  the  In- 
dians and  warmly  welcomed  by  the  authorities  of  Albany. 

Notwithstanding  the  belief  in  witchcraft  which  then  existed 
in  Europe  and  conspicuously  manifested  itself  in  Massachusetts, 
there  was  only  one  trial  for  an  offence  of  that  character  in  New 
Netherland  or  New  York  in  the  seventeenth  century.  Further- 
more, in  that  instance,  the  prisoners  were  accused  of  murder  and 
were  tried  for  that  crime  and  not  for  witchcraft,  although,  indeed 
the  matter  of  witchcraft  was  brought  into  the  case ;  and  in  the  end 

105 


LEGAL   AND   JUDICIAL 

they  were  acquitted.  Slavery  scarcely  existed.  A  few  instances 
there  were,  but  it  appears  to  have  been  a  bondage  that  did  not 
often  bear  very  harshly  upon  those  who  were  held.  The  records 
of  the  courts  of  the  period  present  several  cases  showing  that  a 
man's  possession  of  slaves  was  not  necessarily  of  a  conclusive 
character,  or  that  it  gave  him  extreme  privilege  of  ownership. 
One  master  came  to  court  for  permission  before  he  could  chastise 
an  offending  negro  slave,  and  cases  of  thievery  on  the  part  of  the 
slaves  were  as  apt  to  be  brought  before  the  court  for  settlement 
as  though  the  offender  was  white.  For  the  most  part,  the  Indians 
were  protected  from  outrage  by  law  and  by  public  sentiment,  and 
the  whites  who  unduly  molested  them  were  often  severely  pun- 
ished. Of  course,  there  were  exceptions  to  this  rule,  especially 
during  the  governorship  of  Kieft,  when  the  Indians,  by  maltreat- 
ment, were  provoked  to  reprisal,  with  the  resultant  Indian  War. 
Generally  the  officials  sent  out  by  the  West  India  Company 
were  men  of  capacity.  To  be  sure,  there  was  the  weak  Minuit 
and  Van  Twiller  and  the  rapacious  unprincipled  Kieft.  But 
Kieft  was  not  wholly  inefficient,  and  Stuyvesant,  despite  his 
irascibility,  was  a  man  of  undoubted  power  and  patriotism  who,  in 
a  wider  field  of  action  might  well  have  been  expected  to  have 
achieved  reputation  as  one  of  the  world's  great  pro-consuls.  Pro- 
vincial secretaries  from  1626  to  1674,  the  end  of  the  Dutch  occu- 
pation, were  Isaac  de  Rasieres,  Jan  Van  Remund,  Andries  Hudde, 
Cornells  Van  Tienhoven,  Adriaen  Keyser,  Jacob  Kip,  Carel  Van 
Brugge,  Cornells  Van  Ruyven,  and  Nicholas  Bayard.  English 
speaking  secretaries  were  George  Baxter  in  1642  and  1647,  Carel 
Van  Brugge  in  1654,  and  Nicholas  Bayard  in  1657.  During  this 
same  period  of  nearly  fifty  years,  the  provincial  schout  iiscals 
were  Jan  Lampo,  Conraed  Notelman,  Lubbertus  Van  Dincklagen, 
Jacques  Bentyn,  Ulrich  Lupoid,  Cornelia  Van  Der  Huyghens, 

106 


HISTORY  OF  NEW  YORK 

Hendrick  Van  Dyck,  Cornelis  Van  Tienhoven,  Nicasius  de  Sille, 
and  William  Knyffe. 

Other  members  of  the  governors'  councils,  commencing  with 
Peter  Minuit  in  1626,  and  ending  with  the  final  close  of  the 
Dutch  occupation  in  1674,  were  Peter  Blyvelt,  Jacob  Elbertsen 
Wissinck,  Jan  Jansen  Brouwer,  Symon  Dirksen  Pos,  Raynert 
Harmensen,  Jan  Jansen  Myndertsen,  Jacob  Jansen  Hesse,  Mar- 
ten Gerritsen  Van  Bergen,  Claes  Van  Elsant,  Jacobus  Van  Curler, 
Johannes  La  Montagne,  Brian  Newton,  Paulus  Leendertsen  Van 
Der  Grift,  Cornelis  Van  Werkhoven,  Peter  Tonneman,  Allard 
Anthony,  Martin  Kregier,  Johannes  De  Decker,  Oloflf  Stevensen 
Van  Cortlandt,  Commander  Cornelis  Evertsen,  Commander 
Jacob  Benckes,  Captain  Anthony  Colve,  Captain  Nicolaes  Boes, 
Captain  Abraham  F.  Van  Zeyll,  and  Cornelis  Steenwyck. 

The  subordinates  compared  favorably  in  ability  and  integrity 
with  their  superiors.  Several  of  them  ultimately  became  men  of 
distinction  in  the  province.  As  members  of  the  council  the 
administration  of  the  law  was  in  their  hands  until  the  institution 
of  the  board  of  burgomasters  and  schepens  with  judicial  powers. 
So  far  as  reports  have  been  handed  down,  they  were,  with  perhaps 
a  single  exception,  upright  men  of  capability.  Of  the  one  excep- 
tion— Van  Tienhoven — it  must  be  admitted  that,  although  of 
thoroughly  bad  character,  none  of  his  contemporaries  surpassed 
him  in  natural  ability  for  public  affairs.  Several  of  them  became 
active  and  influential  in  municipal  affairs  and  as  justices  of  the 
first  courts,  after  the  people  had  wrung  from  the  West  India 
Company  the  right  of  popular  government. 

Isaac  De  Rasieres,  opper  koopman  or  chief  commissary  for 
the  West  India  Company  and  secretary  of  the  colony  under  Min- 
uit, went  out  from  Holland  on  the  ship  "Arms  of  Amsterdam," 
and  arrived  in  New  Netherland,  July  27,  1626.    He  was  a  French 

107 


LEGAL   AND   JUDICIAL 

Protestant  whose  ancestors,  being  among  those  driven  out  from 
France  by  religious  persecutors,  settled  on  the  river  Waal  in 
Guelderland  and  were  named  Walloons.  He  was  a  protege  of 
Samuel  Blommaert,  a  leading  director  in  the  West  India  Com- 
pany. In  October,  1627,  he  went  as  an  emissary  from  New 
Netherland  to  Governor  Bradford,  of  the  Plymouth  Plantation, 
and  Bradford  spoke  of  him  as  "the  Dutch  upper  comics,  or  chief 
merchant,  and  friend  to  the  governor ;  a  man  of  fair  and  genteel 
behavior."  In  1627  or  1628  he  returned  to  Holland  and  made  a 
written  report  to  Samuel  Blommaert  concerning  affairs  in  New 
Netherland.  This  is  the  earliest  account  of  the  colony  of  New 
Netherland  and  its  neighborhood  written  by  an  eye  witness.^ 

Nicasius  De  Sille,  who  was  schout  fiscal  under  Governor 
Stuyvesant,  came  of  a  family  whose  members  had  been  distin- 
guished in  Belgium  and  Holland.  The  family  was  originally  of 
Mechlin,  in  Belgium.  After  the  revolt  of  the  united  provinces 
against  Spain,  one  Nicasius  De  Sille  went  to  Amsterdam,  and 
was  chosen  a  pensionaire  of  that  city.  In  1587,  with  other  dis- 
tinguished citizens,  he  was  sent  on  an  embassy  to  Queen  Eliza- 
beth of  England.  On  three  different  occasions  he  was  an  em- 
bassador to  Denmark,  and  was  also  sent  on  diplomatic  business 
to  Germany.  He  was  repeatedly  chosen  a  deputy  to  the  States 
General,  and  on  two  occasions  was  a  commissioner  to  the  army 
in  the  field.  He  died  in  1660.  Nicasius  De  Sille,  who  figured  in 
the  history  of  New  Amsterdam,  was  one  of  the  lineal  descendants 
of  this  distinguished  Hollander.  A  native  of  Arnheim,  he  had  a 
substantial  education,  and  came  from  Holland  in  1653.  In  July 
of  that  year  he  was  commissioned  by  the  Assembly  of  Nineteen 


2.  The  original  manuscript  is  in  the  Royal  Library  at  the  Hague.  A 
translation  by  J.  R.  Brodhead  is  in  the  "Collections  of  the  New  York 
Historical  Society."     Second  Series,  vol.  H,  p.  339. 

108 


HISTORY  OF  N  EPF  YORK 

to  be  the  first  counsellor  to  the  director  general.  The  letter  to 
Governor  Stuyvesant  announcing  his  appointment  speaks  highly 
of  his  accomplishments : 

"We  have  deemed  it  advisable  for  the  better  administration  of  the 
government  in  New  Nctherland,  to  strengthen  your  Council  with  anoth- 
er expert  and  able  statesman ;  and  whereas  Nicasius  de  Sille,  the  bearer 
of  these  open  letters,  did  apply  to  us  for  this  appointment,  so  we  have, 
trusting  in  the  good  reports  of  his  character,  and  confiding  in  his  talents, 
appointed  him  First  Counsellor  to  the  Director,  to  reside  as  such  at  Fort 
Amsterdam,  and  deliberate  with  you  on  all  affairs  relating  to  war,  police 
and  national  force;  to  keep  inviolate  all  alliances  of  friendship  and  com- 
merce, and  if  feasible,  to  increase  these ;  to  assist  in  the  administration  of 
justice,  criminal  as  well  as  civil,  and  further,  to  advise  you  in  all  events 
and  occurrences  which  may  be  brought  forward.  We  address  this  to  your 
Honors  that  you  might  be  informed  of  this  our  intention,  and  to  have 
this  Nicasius  de  Sille  acknowledged  and  respected  by  all  the  inhabitants, 
as  in  our  opinion  the  service  of  the  Company  shall  hereby  be  promoted.'" 

As  counsellor  he  was  of  great  help  to  Stuyvesant,  being  well 
versed  in  the  law,  acquainted  with  military  afifairs,  and  otherwise 
qualified  for  public  service.  He  enjoyed  the  fullest  confidence  of 
Governor  Stuyvesant,  and  accompanied  that  official  upon  the 
famous  expedition  against  the  Swedes  in  Delaware.  In  1656  the 
burgomasters  petitioned  the  governor  and  council  to  appoint  from 
the  citizens  "an  intelligent  and  expert"  person  as  schout  of  the 
city.  This  petition  was  refused  by  Governor  Stuyvesant,  but  he 
went  so  far  as  to  appoint  De  Sille  to  succeed  the  discredited  Van 
Tienhoven  as  the  schout  of  the  company,  and  to  serve  also  as  the 
schout  of  the  city.  That  position  he  held  for  four  years,  receiving 
for  his  services  a  salarj'^  of  one  hundred  florins  ($40)  per  month 
and  his  board.  Subsequently  he  removed  to  Long  Island,  and 
was  one  of  the  nineteen  first  settlers  of  New  Utrecht  in  1657. 


3.    "History  of  New  Netherland",  by  E.  B.  O'Callaghan,  M.  D.,  LL. 
D.,  vol.  II,  p.  236. 

109 


LEGALAND  JUDICIAL 

In  that  place  he  built  one  of  the  first  houses,  and  he  was  the 
schout  of  the  town,  and  in  1674  was  secretary  of  the  five  Dutch 
villages.  He  was  a  man  of  exceptional  attainments  both  in 
science  and  literature,  and  was  one  of  the  few  poets  of  New 
Amsterdam  who  left  examples  of  their  work.  He  wrote  a  "His- 
tory of  the  First  Beginning  of  the  Town  of  New  Utrecht,"  and 
several  of  his  poems  appear  in  the  records  of  that  town. 

Few  men  were  more  conspicuous,  more  active  or  more  influ- 
ential during  the  Dutch  period,  than  Cornelis  Van  Tienhoven. 
Perhaps  no  one  so  generally  won  the  ill  will  of  the  people,  and  the 
record  seems  to  show  that  he  deserved  the  bad  repute  which  at- 
tached to  his  name.  He  was  a  native  of  Holland,  born  as  some 
authorities  say  in  Utrecht,  and  others  in  Tienhoven,  which  was  a 
village  in  the  south  part  of  Holland.  His  first  appearance  in  New 
Amsterdam  was  in  1633,  when  he  came  out  as  a  bookkeeper  for 
the  West  India  Company.  In  1638  he  was  the  colonial  secretary 
and  the  schout-Ascal.  At  that  time  he  had  a  salary  equivalent  to 
two  hundred  and  fifty  dollars  a  year  and  the  fees  of  the  office. 
Gradually  he  acquired  wealth,  and  had  extensive  landed  property 
on  Long  Island.  He  was  a  man  of  great  subtlety  of  mind  and 
strength  of  will,  and  it  has  been  correctly  said  of  him  that  in  a 
very  large  measure  he  controlled  and  directed  the  policy  of  the 
government  under  Kieft  and  Stuyvesant.  Over  Kieft  he  had 
almost  unlimited  influence,  and  when,  in  1647,  Stuyvesant  came 
out,  he  promptly  transferred  his  allegiance  to  the  new  governor. 
He  was  not  able  to  dominate  Stuyvesant  as  he  had  Kieft,  but  his 
influence  does  not  appear  to  have  seriously  weakened.  Although 
probably  more  unpopular  than  any  other  official  in  New  Amster- 
dam, yet,  despite  the  opposition  of  the  community,  he  long  con- 
tinued successful  and  undisturbed  in  holding  power.  A  man  of 
violent  passions,  he  cherished  an  intense  hatred  of  the  Indians, 

no 


HISTORY  OF  N EIF  YORK 

and  it  was  considered  that  more  than  any  one  else  he  was  re- 
sponsible for  the  outbreak  of  the  Indians  in  the  time  of  Kieft  in 
1640.  When  Stuyvesant  was  accused  by  the  representatives  of 
the  commonalty  in  1647,  he  sent  Van  Tienhoven  to  Holland  as 
his  emissary  to  defend  him.  There  his  immoral  conduct  brought 
him  under  the  condemnation  of  the  authorities,  but  in  the  end, 
although  he  had  accomplished  little  for  Stuyvesant,  he  was  per- 
mitted to  return  to  New  Netherland.  Stuyvesant  retired  the 
schout  fiscal  Van  Dyck  and  appointed  Van  Tienhoven  to  suc- 
ceed him  in  1652.  The  following  year  he  was  associated  with 
Arendt  Van  Hattem  as  a  commissioner  to  Virginia  to  treat  with 
the  English  for  a  boundary  treaty,  and  the  following  year  he  was 
sent  as  an  agent  to  negotiate  with  the  New  England  authorities. 
His  downfall  came  in  1655.  His  impure  private  life  and  his 
questionable  public  conduct  compelled  the  West  India  Company 
to  order  Governor  Stuyvesant  to  remove  him  from  office  immedi- 
ately. He  disappeared  from  New  Amsterdam  over  night,  and  as 
his  hat  and  cane  were  discovered  on  the  shore  of  the  bay,  it  was 
believed  by  some  that  he  had  committed  suicide,  but  there  has 
always  been  a  suspicion  that  he  decamped  from  the  country, 
carrying  with  him  some  proceeds  of  his  dishonesty.  His  conduct 
as  a  private  individual  and  as  a  public  official  was  described,  and 
his  character  was  analyzed  in  the  "Representation  of  New  Nether- 
land." 

"The  Secretary,  Cornells  Van  Tienhoven,  comes  next.  Of  this  man 
very  much  could  be  said,  and  more  than  we  are  able,  but  we  will  select 
here  and  there  a  little  for  the  sake  of  brevity.  He  is  cautious,  subtle,  in- 
telligent and  sharp-witted, — good  gifts  when  they  are  well  used.  He  is 
one  of  those  who  have  been  longest  in  the  country,  and  every  circum- 
stance is  well  known  of  him,  in  regard  both  to  the  Christians  and  the 
Indians.  With  the  Indians  moreover  he  runs  about  the  same  as  an  In- 
dian, with  a  little  covering,  and  a  small  patch  in  front,  from  lust  after 
the  prostitutes  to  whom  he  has  been  always  mightily  inclined,  and  with 

III 


LEGAL  AND  JUDICIAL 

whom  he  has  had  so  much  to  do  that  no  punishment  or  threats  of  the 
Director  can  drive  him  from  them.  He  is  extremely  expert  in  dissimu- 
lation. He  appears  to  all  to  be  asleep,  but  it  is  in  order  to  bite,  and  shows 
externally  the  most  friendship  toward  those  whom  he  most  hates.  He 
gives  everyone  who  has  any  business  with  him, — which  scarcely  no  one 
can  avoid, — good  answers  and  promises  of  assistance,  yet  rarely  helps 
any  body;  but  twists  continually  and  shuffles  from  one  side  to  the  other. 
Except  to  his  friends — the  priests, — he  is  in  his  words  and  conduct  loose, 
false,  deceitful  and  given  to  lying,  promising  every  one,  and  when  it 
comes  to  perform,  never  at  home.  The  origin  of  the  war  was  ascribed 
principally  to  him,  together  with  some  of  his  friends.  *  *  *  The  whole 
country,  save  the  Director  and  his  party  cries  out  against  him  bitterly,  as  a 
villain,  murderer  and  traitor,  who  must  leave  the  country  or  there  will 
be  no  peace  with  the  Indians."* 

Lubbertus  Van  Dincklagen,  the  vice-director  under  Stuyve- 
sant,  had  acted  as  schout  fiscal  for  Van  Twiller,  and  was  the  chief 
judge  of  the  first  court  established  by  Stuyvesant.  He  was  a 
man  of  superior  education,  a  doctor  of  laws,  and  an  able  and 
accomplished  jurist.  He  did  not  get  along  at  all  well  with  Stuy- 
vesant, and  ultimately,  in  February,  165 1,  the  governor,  after  a 
scene  of  violent  dispute,  forcibly  expelled  him  from  the 
council  chamber  and  dismissed  him  from  office.  But  the 
domineering  governor  met  his  match  this  time.  Van  Dinck- 
lagen was  held  in  high  esteem  by  the  authorities  in  Holland,  alike 
as  a  man  and  as  a  jurist.  Orders  promptly  came  to  Stuyvesant 
before  the  close  of  the  year,  to  reinstate  him  in  office,  but  mean- 
time he  had  moved  to  Stat  en  Island,  and  he  does  not  appear  to 
have  again  participated  in  the  deliberations  of  the  council.  In  the 
"Representation  of  New  Netherland"  he  is  thus  spoken  of : 

"The  Vice-Director,  Lubbert  van  Dincklagen,  has  for  a  long  time  on 
various  occasions  shown  great  dissatisfaction  about  many  different  mat- 
ters, and  has  protested  against  the  Director  and  his  appointed  Councillors, 


4.    "Collections  of  the  New  York  Historical  Society,"  Second  Series, 
vol.  II,  p.  306. 

112 


HISTORY  OF  NEW  YORK 

but  only  lately  and  after  some  others  of  the  chief  officers  had  done  so. 
He  was,  before  this,  so  influenced  by  fear,  that  he  durst  venture  to  say 
nothing  against  the  Director,  but  let  many  things  pass  by  and  submitted 
to  them.  He  declared  afterwards  that  he  had  great  objections  to  them, 
because  they  were  not  just,  but  he  kept  silence  for  the  sake  of  peace,  as  the 
Director  had  said  in  the  Council,  that  he  would  treat  him  worse  than 
Wouter  Van  Twiller  had  ever  done,  if  he  were  not  willing  to  conform 
to  his   wishes.     This   man   then,   is   over-ruled.'" 

Hendrick  Van  Dyck,  a  native  of  Utrecht,  came  to  the  New 
Netherland  colony  in  the  service  of  the  West  India  Company  as 
an  ensign  as  early  as  1639  or  1640.  It  was  not  long  before  he 
acquired  considerable  property,  and  ultimately  he  became  a  man 
of  large  influence.  He  was  active  in  affairs  almost  from  the  time 
that  he  arrived  in  New  Amsterdam.  In  1642,  under  Director 
General  Kieft,  he  had  the  command  of  the  troops  which  marched 
against  the  Indians  in  Westchester.  In  1644  he  was  associated 
with  Captain  John  Underbill  in  the  military  enterprise  against 
the  Indians  of  Long  Island  and  Connecticut.  Soon  after  that 
time  he  returned  to  Holland,  but  came  back  to  New  Amsterdam 
with  his  commission  as  schout  fiscal  in  1646.  He  remained  a 
member  of  the  council  until  1655,  but  most  of  the  time  was  in 
active  opposition  to  Stuyvesant,  who  in  the  end  dismissed  him 
from  office.  He  died  in  1688.  Concerning  him  the  authors  of 
"The  Representation  of  New  Netherland"  had  this  to  say : 

"There  remains  to  complete  this  court-bench  the  Secretary  and  the 
Fiscal,  Hendrick  Van  Dyck,  who  had  previously  been  an  ensign-bearer. 
Director  Stuyvesant  has  kept  him  twenty-nine  months  out  of  the  meetings 
of  the  Council,  for  the  reason  among  others  which  His  Honor  assigned, 
that  he  cannot  keep  secret  but  make  public,  what  is  there  resolved.  He 
also  frequently  declared  that  he  was  a  villain,  a  scoundrel,  a  thief  and  the 
like.    All  this  is  well  known  to  the  Fiscal,  who  does  not  against  him  take 


5.    "Collections  of  the  New  York  Historical  Society,"  Second  Series, 
vol.  n,  p.  305. 

"3 


LEGAL  AND  JUDICIAL 

the  right  cause,  and  in  our  judgement  it  is  not  advisable  for  him  to  do  so; 
for  the  Director  is  utterly  insuflFerable  in  word  and  deed."* 

Pieter  Tonneman,  who  was  the  schout  in  1661,  1663  and  1664, 
was  an  employee  of  the  West  India  Company  and  seems  to  have 
been  a  chronic  office  holder,  holding  some  place  during  the  most 
of  his  life.  He  was  a  schout  in  Long  Island  in  1674  and  he  held 
other  official  positions. 

Concerning  other  members  of  the  council  of  Stuyvesant  the 
"Representation  of  New  Netherland"  has  something  to  say : 

"Sometimes  the  Commissary  Adrian  Keyser  is  admitted  into  the 
Council,  who  came  here  as  Secretary.  This  man  has  not  forgotten  much 
law,  but  says  that  he  lets  God's  water  run  over  God's  field.  He  cannot 
and  dares  not  say  anything,  for  so  much  deyolved  upon  him  that  it  is  best 
that  he  should  be  silent. 

"The  Captains  of  the  Ships,  when  they  are  ashore,  have  a  vote  in  the 
Council :  as  Jelmer  Thomassen  and  Paulus  Lenaertson,  who  was  made 
Equipment  master  upon  his  first  arrival  and  who  has  always  had  a  seat 
in  the  Council  and  is  a  free  man.  What  knowledge  these  people,  who 
all  their  lives  sail  on  the  sea,  and  are  brought  up  to  ship-work,  have  of 
law  matters  and  of  the  disputes  of  landsmen  anyone  can  easily  imagine. 
Besides  the  Director  keeps  them  so  in  debt  that  they  dare  not  speak  in 
opposition  to  him.  *  *  *  But  they  have  not  fared  badly;  for  though 
Paulus  Lenaertson  has  small  wages  he  has  built  a  better  dwelling  house 
here  than  anybody  else.  How  this  has  happened  is  mysterious  to  us;  for 
if  the  Director  has  knowledge  of  these  matters,  he  is  nevertheless  as  quiet 
when  Paulus  Lenaertson  rises  as  he  is  inattentive  to  anybody  else,  which 
causes  suspicions  in  the  minds  of  many. 

"Monsieur  la  Montague  had  been  in  the  Council  in  Kieft's  time,  and 
was  then  very  much  suspected  by  many.  He  had  no  commission  from  the 
Fatherland,  was  driven  by  the  war  from  his  farm,  is  also  very  much  in- 
debted to  the  Company,  and  therefore  is  compelled  to  dissemble.  But  it  is 
sufficiently  known  from  himself  that  he  is  not  pleased  and  is  opposed  to 
the  administration. 

"Brian  Newton,  lieutenant  of  the  soldiers  is  the  next.  This  man  is 
afraid  of  the  Director,  and  regards  him  as  his  benefactor ;  and  besides 
is  very  simple  and  inexperienced  in  law.     As  he  does  not  understand  our 


6.     "Collections  of  the  New  York  Historical  Society,"  Second  Series, 
vol.  H,  p.  306. 

114 


HISTORY  OF  NEW  YORK 

Dutch  language,  he  is  scarcely  capable  of  replying  to  the  long  written  opin- 
ions, except  that  he  can  and  will  say  yes."^ 

As  has  been  already  seen,  it  was  not  long  after  the  colony 
began  that  the  people  manifested  their  unwillingness  tamely  to 
submit  to  the  exactions  of  the  proprietary  company  and  its  rep- 
resentatives, the  governor  and  council,  and  started  their  demand 
for  a  certain  amount  of  participation  in  legislation  and  in  the 
administering  of  the  laws  governing  them.  The  issue  developed 
leaders,  and  there  came  to  the  front  men  who  quickly,  by  dint  of 
natural  ability,  force  of  character,  and  strong  personality  and 
knowledge  of  government  and  of  democratic  principles,  gradually 
attained  to  supremacy  over  the  council.  Several  of  these  men 
had  already  been  members  of  the  council,  while  others  sprang 
from  the  commonalty,  and  they  exhibited  remarkable  capacity  in 
meeting  the  exigencies  of  the  situation  and  in  moulding  affairs  to 
the  common  good.  First  they  appeared  as  members  of  the  Board 
of  Twelve  Men,  which  Kieft  summoned  in  1641,  and  they  were 
followed  in  1643  ^.nd  1645  by  the  Boards  of  Eight  Men,  and 
again  in  the  years  from  1647  to  1652,  under  the  rule  of  Stuyve- 
sant,  by  the  Boards  of  Nine  Men ;  and  among  them  were  the 
signers  of  the  celebrated  "Remonstrance"  of  1649. 

While  those  men  aimed  primarily  at  participation  in  the 
municipal  and  legislative  direction  of  affairs,  the  ultimate  end  of 
their  contention  was  that  the  people  should  have  part  in  the  work 
of  enforcing  the  laws  and  ordinances  which  controlled  the  com- 
munity as  well  as  in  making  them.  In  these  boards  we  have  the 
first  forms  of  popular  government  by  representatives  of  the 
people  generally  that  ever  appeared  within  the  limits  of  New 
York  and  New  Jersey.    Among  those  who  made  up  these  several 


7.    "Collections  of  the  New  York  Historical  Society,"  Second  Series, 
vol.  II,  p.  305. 

"5 


LEGAL  AND  JUDICIAL 

boards  were  many  who  were  not  only  active  and  forceful  in  the 
early  uprising  of  the  commonalty  against  the  autocratic  control 
of  the  West  India  Company,  but  there  were  men  who  in  future 
years  developed  strongly  in  leadership,  in  patriotism,  and  in  an 
unswerving  devotion  to  the  best  interests  of  the  colony.  Their 
names  have  become  historic  in  these  respects,  and  they  may  be 
accepted  as  t>'pical  of  the  best  element  in  the  communities  in 
which  they  were  conspicuous  figures.  Their  individual  histories 
make  no  inconsiderable  part  of  the  history  of  the  colony  as  long 
as  the  Dutch  continued  in  control.  Most  prominent  among  them 
were  several,  brief  sketches  of  whose  careers  in  connection  with 
New  Amsterdam  and  New  Netherland  are  here  given. 

Augustine  Heermans,  one  of  the  Nine  Men  and  one  of  the 
signers  of  the  "Remonstrance,"  was  a  native  of  Prague,  Bohemia, 
and  came  to  New  Amsterdam  before  1633  in  the  employ  of  the 
West  India  Company.  Afterward  he  engaged  in  business  on  his 
own  account,  and  made  at  least  one  visit  to  Holland,  coming  out 
again  to  New  Amsterdam  in  1644  as  the  representative  of  the 
great  mercantile  house  of  Gabry  of  Amsterdam.  This  connection 
gave  him  high  standing  in  the  community,  and  he  rapidly  acquired 
property  and  became  a  citizen  of  distinction.  He  held  many 
offices  of  importance  and  was  generally  looked  up  to  and  highly 
respected.  He  was  a  member  of  the  Board  of  Nine  Men  in  1647, 
1649  ^"d  1650,  was  sent  as  an  embassador  to  Rhode  Island  in 
1652,  and  in  1659  was  associated  with  Resolved  Waldron  on  an 
embassy  to  Maryland.  Privateering,  which  was  a  considerable 
source  of  revenue  of  those  days,  added  to  his  resources,  and  in 
1649  he  was  a  part  owner  of  the  frigate  La  Garce,  which  was 
commissioned  to  make  inroads  upon  the  commerce  of  the 
Spaniards.  In  1652  he  failed  in  business,  but  before  another 
year  had  passed  he  had  been  successful  in  settling  with  his  credi- 

116 


HISTORY  OF  NEW  YORK 

tors  and  regained  his  prosperity.  In  1660  he  went  to  Maryland, 
where  he  acquired  property.  After  the  EngHsh  came  he  could 
not  reconcile  himself  to  the  change,  but  established  himself  per- 
manently upon  his  Maryland  estate.  In  that  province  he  became 
celebrated  as  the  proprietor  of  Bohemian  Manor,  a  territory  of 
eighteen  thousand  acres.    He  died  in  Maryland  in  i686. 

Govert  Loockermanns  was  born  in  Turnhout,  Netherland, 
and  came  to  New  Amsterdam  in  1633.  For  a  short  time  he  was  a 
clerk  for  the  West  India  Company,  but  soon  found  opportunities 
for  himself  in  independent  occupation.  He  engaged  in  trade,  and 
achieved  prosperity  and  high  standing  in  the  community.  In  1640 
he  returned  to  Holland  to  be  married,  and  the  following  year 
came  back  to  New  Netherland.  After  that  he  was  engaged  as  a 
shipping  merchant  and  general  trader  to  the  end  of  his  life,  and 
ultimately  became  one  of  the  wealthiest  citizens  of  New  Nether- 
land. Beginning  with  1642  he  traded  with  the  yacht  Hope  to 
Fort  Orange  (Albany),  to  the  South  or  Delaware  River,  and  as 
far  east  as  the  mouth  of  the  Connecticut  River.  Closely  asso- 
ciated with  Kieft,  although  not  a  servile  follower  of  that  director, 
he  led  in  the  massacre  of  the  Indians  at  Corlear's  Hook  in  1653, 
with  Maryn  Andriansen,  and  it  has  been  said  that,  to  the  end  of 
his  days,  he  deeply  regretted  his  participation  in  that  affair.  His 
commerce  with  Holland  was  extensive,  and  in  addition  to  his 
domestic  trading  he  had  a  brewery.  In  1647  he  was  one  of  the 
Board  of  Nine  Men,  and  again  in  1650.  He  was  a  schepen  in 
1657  and  1660,  and  an  orphanmaster  in  1663.  Acquiring  a  mas- 
tery of  the  Indian  tongue,  his  services  were  often  availed  of  as  an 
interpreter.  In  1670  he  was  a  lieutenant  of  the  militia  company. 
It  appears  that  he  was  a  man  of  superior  education,  bold,  adven- 
turous and  enterprising,  and  not  over-scrupulous  either  in  his 

117 


LEGAL  AND  JUDICIAL 

trading  with  the  Indians  or  in  his  more  extensive  commerce  with 
Netherland. 

Hendrick  Hendricksen  Kip,  who  was  one  of  the  Board  of 
Nine  Men  in  1647,  1649  and  1650,  a  signer  of  the  "Remon- 
strance," and  a  schepen  in  1656,  and  who,  in  all  the  contentions 
against  the  directors  general,  was  particularly  conspicuous  and 
active,  was  one  of  the  earliest  settlers  in  New  Amsterdam,  com- 
ing to  the  colony  before  1643.  It  is  believed  that  he  was  of  noble 
lineage,  probably  from  the  family  of  De  Kype  of  Bretagne, 
France,  members  of  whom  removed  to  Holland  in  the  sixteenth 
century  as  the  result  of  religious  agitation  in  their  native  country ; 
the  coat-of-arms  which  he  claimed  was  on  the  stained  glass 
windows  of  the  first  church  built  in  New  Amsterdam  and  on  the 
Kip's  Bay  house  of  his  descendants.  He  was  of  humble  condi- 
tion, being  a  tailor  by  occupation,  but  he  was  a  politician  in  all 
his  instincts.  In  the  popular  struggle  against  Director  Kieft  he 
was  one  of  the  leaders,  and  as  influential  as  any  in  the  com- 
munity. His  strong  personality  and  his  unwearying  activity  made 
him  one  of  the  most  remarkable  individuals  of  his  time  and  place. 
His  hatred  of  Kieft  for  the  massacre  of  the  Indians  at  Pavonia 
and  Corlear's  Hook  in  1643  never  waned,  and  he  never  neglected 
an  opportunity  to  show  it.  In  August,  1645,  when  peace  was 
being  arranged  with  the  Indians  after  the  Kieft  Indian  wars,  the 
people  were  called  to  the  fort  to  hear  and  consider  the  proposals 
for  the  treaty  between  the  savages  and  the  Dutch.  The  record 
has  it  that  all  assented  to  this  summons  "except  Hendrick  Kip, 
the  tailor."  When  Kieft  sailed  from  New  Amsterdam  for  Hol- 
land he,  almost  alone  of  the  community,  would  not  even  join  in 
the  adieus  which  the  people  paid  as  a  matter  of  form  to  the  de- 
posed ruler. 

Joachim  Pietersen  Kuyter,  who,  with  Cornelis  Melyn,  was 

118 


HISTORY  OF  NEW  YORK 

one  of  the  great  leaders  of  the  people  against  Kieft,  was  a  native 
of  Darmstadt,  where  he  was  born  about  1597.  He  was  engaged 
in  the  Danish  service  of  the  East  India  Company,  and  in  1659 
came  with  his  family  to  New  Netherland  in  the  interest  of  the 
West  India  Company.  From  the  beginning  of  his  appearance  in 
New  Amsterdam  he  took  a  prominent  position,  which  he  held 
until  the  end  of  his  life.  In  the  fight  which  was  waged  by  the 
commonalty  against  Kieft,  he  was  so  conspicuous  and  active  that 
he  brought  down  upon  himself  the  special  ill-will  of  the  gov- 
ernor, and  that  ill-will  Kieft  was  enabled  to  transmit  to  his 
successor  Stuyvesant.  In  spite  of  his  outspoken  opinions  of 
Kieft,  he  was  one  of  the  Twelve  Men  who  were  summoned  for 
consultation  in  regard  to  government  aflfairs  in  1641,  and  was 
also  one  of  the  Board  of  Eight  Men  in  1643.  He  was  a  man  of 
exceptional  ability  and  possessed  of  strong  intellectual  qualities. 
The  petition  which  he  and  Melyn  sent  to  Stuyvesant  in  1644, 
and  the  answer  which,  also  in  conjunction  with  Melyn,  he  made 
to  Stuyvesant  in  1647,  answering  Kieft's  accusations,  showed 
that  he  was  capable  of  drafting  a  state  paper  of  extraordinary 
power. 

"Moreover,  even  just  cause,  does  not  oblige  rulers  to  undertake  war 
for  their  subjects,  except  it  can  be  done  without  damage  to  all  or  the  ma- 
jority of  them.  For  the  office  of  governor  extends  rather,  over  the 
whole,  than  over  a  part ;  and  where  a  part  is  greater,  there  it  approximates 
more  closely  to  the  nature  of  the  whole;  and  in  regard  to  Christ's  precept 
which  wills  that  we  be  ready  to  set  aside  all  contentions  and  discord;  con- 
sequently still  more  does  it  discountenance  war;  and  therefore,  says  Am- 
brose— 'It  is  not  only  generosity  in  a  prudent  man  to  desist  somewhat 
from  his  right ;  but  it  is  also  profitable  and  advantageous.'  In  like  man- 
ner Aristides — 'Men  must  quietly  yield  and  grant  a  little,  for  those  are 
prized  who  will  rather  suflFer  wrong  than  contention.'  Zenophon : — 'It 
becometh  even  the  wise  not  to  commence  a  war  for  a  great  cause.'  From 
all  that  has  been  here  stated  on  the  subject  of  war,  it  can  readily  be  con- 
cluded how  prudently  we  must  proceed  in  the  matter ;  and  how  hazardous 

119 


LEGAL  AND  JUDICIAL 

it  is  to  engage  in  it,  especially  with  so  rude  and  barbarous  a  people  as 
these  Indians  are.'" 

Notwithstanding  the  enmity  of  Kieft  and  his  condemnation 
and  sentence  by  Stuyvesant,  the  influence  of  Kuyter  with  the 
government  of  Holland  prevailed  against  the  provincial  authori- 
ties. In  1654  he  was  commissioned  as  schout,  but  before  he  had 
time  to  assume  the  duties  of  that  office  he  was  murdered  by  the 
Indians.  He  owned  a  farm  near  Harlem,  and  also  had  a  city 
residence. 

Oloff  Stevensen  Van  Cortlandt  came  to  New  Amsterdam  in 
1637  in  a  military  capacity.  In  the  summer  after  his  arrival,  he 
became  connected  with  the  civil  service  of  the  colony,  being 
appointed  commissary  of  cargoes  for  the  West  India  Company. 
For  eleven  years  he  was  thus  attached,  but  then  leaving  that 
employ  he  established  himself  as  a  brewer.  Ultimately  he  became 
a  citizen  of  prominence,  and  active  and  influential  in  all  political 
movements  of  his  day.  He  was  a  man  of  decided  public  spirit 
and  never-tiring  energy,  and  his  abilities  were  recognized  by  his- 
being  appointed  president  of  the  Board  of  Nine  Men  in  1650. 
He  acquired  large  properties  and  held  many  offices,  the  gift  of 
his  fellow  citizens.  During  the  Stuyvesant  period  he  was  most 
conspicuous  in  his  unrelenting  opposition  to  the  governor.  He 
died  in  1683. 

Thomas  Hall  was  an  Englishman  born  in  Gloucestershire 
about  1614.  Coming  to  America  he  sojourned  for  a  short  time 
in  New  England,  and  then  with  other  pioneers  attempted  a  set- 
tlement on  the  banks  of  the  Delaware  upon  the  lands  already 
claimed  by  the  Dutch.  He  was  taken  a  prisoner  by  the  Dutch 
and  brought  to  New  Amsterdam.     Making  his  peace  with  the 


8.     "Documents  Relative  to  the  Colonial  History  of  the  State  of  New 
York",  vol.  I.     ("Holland  Documents",  HI,)  p.  208. 

120 


HISTORY  OF  N ElV  YORK 

Dutch  authorities,  he  received  the  rights  of  the  city  and  remained 
there,  being,  with  his  partner  George  Holmes,  the  first  EngHsh 
settlers  within  the  present  bounds  of  the  state  of  New  York.  In 
1639,  with  his  partner,  he  had  a  large  tobacco  plantation  on  the 
banks  of  the  East  River,  and  in  1654  he  owned  a  property  just 
outside  of  the  city  limits  on  the  hilltop  near  what  afterwards 
became  Beekman  street.    He  died  in  1670. 

Jan  Evertsen  Bout  came  to  New  Netherland  in  1634  or 
1635.  In  Holland  he  had  been  in  the  employment  of  the  West 
India  Company,  by  whom  he  was  sent  out  to  the  new  world.  He 
was  engaged  by  Michael  Paauw,  the  patroon  of  Pavonia,  on  the 
west  side  of  the  North  river,  opposite  New  Amsterdam,  to  take 
charge  of  that  manor.  In  1638  he  was  one  of  the  first  settlers  of 
that  section  of  New  Jersey  where  the  town  of  Bergen  was  in 
later  generations  established.  There  he  resided  for  several  years, 
but  was  driven  across  the  river  to  New  Amsterdam  by  the 
Indians  at  the  uprising  during  the  time  of  Kieft.  That  he  was  a 
thrifty,  energetic  man  of  affairs  is  sufficiently  indicated  by  the 
fact  that  in  1658  the  plantation  that  he  had  acquired  at  Gamoen- 
epa  (Communipauw)  was  valued  at  $3,200,  a  substantial  sum  in 
those  days.  Afterwards  he  owned  a  farm  in  Gowanus,  and  died 
there  in  1670. 

Michael  Jansen,  another  one  of  the  Board  of  Nine  Men  and 
a  signer  of  the  "Remonstrance",  came  from  Broeckhuysen,  Neth- 
erland, in  1632.  He  first  settled  in  the  Van  Rensselaer  colony, 
where  he  was  engaged  in  the  fur  trade.  He  appears  to  have 
acquired  a  considerable  fortune,  and  in  1646  was  settled  in  Com- 
munipauw, on  the  west  side  of  the  Hudson  River.  In  1655  the 
Indian  uprising  drove  him  from  his  farm  in  New  Jersey  to  New 
Amsterdam.  In  the  town  he  kept  a  tavern  for  considerable  time, 
but   he   returned   to   New   Jersey   after   the   Indians   had   been 

121 


LEGAL  AND  JUDICIAL 

quieted.  He  was  one  of  the  first  magistrates  of  New  Jer- 
sey. 

Arnoldus  Hardenburg  was  one  of  the  earHest  inhabitants  of 
New  Amsterdam,  and  acquired  considerable  wealth  in  trading. 
He  also  attained  a  conspicuous  position  as  a  merchant.  Jacob 
Van  Couwenhoven  had  a  grant  of  land  in  1645  and  acquired 
wealth  as  a  brewer. 

With  the  establishment  of  the  schout,  burgomasters  and 
schepens  in  New  Amsterdam  in  1653  began  the  real  existence  of 
law  courts,  based  on  the  popular  will.  As  has  been  pointed  out 
in  preceding  chapters,  the  burgomasters  and  schepens  combined 
in  their  offices  municipal  and  legislative  powers  with  judicial 
functions.  They  were  the  first  judges  in  the  colony  in  any  way 
mdependent  of  the  proprietory  company.  It  needs  only  a  glance 
at  their  names  to  recognize  that  they  were  the  leading  men  in  the 
communities  where  they  lived,  and  that  they  were  wisely  selected 
by  their  fellow  citizens  for  their  high  character  and  their  general 
knowledge  of  affairs,  and  with  a  full  confidence  in  their  integrity 
and  their  ability  to  administer  justice  righteously.  In  the  list  of 
these  officials  who  held  positions  in  New  Amsterdam  and  the 
other  villages  of  the  colony  from  the  time  of  the  founding  of  the 
first  court  until  the  departure  of  the  Dutch  in  1674,  the  names  of 
several  who  already  had  been  the  leaders  in  the  popular  move- 
ment for  independent  government  are  recognized.  Many  of  those 
who  attained  prominence  and  activity  under  the  new  condition  of 
aflfairs  maintained  that  prominence  and  usefulness  for  the  colony 
even  after  the  English  had  succeeded  to  the  Dutch  in  its  posses- 
sion. 

Whatever  may  be  said  concerning  these  officials  of  New 
Amsterdam  was  equally  true  of  their  contemporaries  holding  like 
positions  in  the  other  villages  and  towns  of  the  colony.     New 

122 


HISTORY  OF  NEW  YORK 

Amsterdam  had  so  preeminently  grown  in  importance  and  in 
varied  interests  that  it  naturally  attracted  within  its  borders  the 
leading  and  most  enterprising  citizens  of  the  colony.  In  the 
other  villages  were  individuals  of  no  less  integrity  and  patriotism, 
but  they  were  generally  men  of  less  calibre  and  not  so  accus- 
tomed to  the  consideration  of  public  affairs.  Consequently,  ex- 
cept in  Rensellaerswyck  and  Fort  Orange,  or  Beverwyck,  com- 
paratively few  had  the  civic  reputation  that  their  compeers  in 
New  Amsterdam  achieved. 

Even  brief  reference  to  the  lives  of  some  of  the  most  not- 
able of  these  individuals  conspicuously  discloses  the  general  char- 
acter of  the  communities  at  that  time,  their  capacity  for  self- 
government,  and  the  respect  with  which  they  regarded  their  first 
judicial  tribunals.  It  does  not  appear  that  these  men  were  se- 
lected for  any  special  reasons  of  social  standing  or  because  they 
were  wealthy;  but  the  choice  of  their  fellow  citizens  evidently 
fell  upon  them  because  they  were  particularly  qualified  for 
the  work  of  managing  public  affairs,  and  of  dispensing  justice. 
Among  them  were  members  of  the  best  families, — as  in  later 
years  we  have  come  to  regard  them, — although  at  that  time  the 
future  best  families  had  indeed  very  little  reputation  except  such 
as  might  be  exhibited  by  their  immediate  representatives  in  their 
own  individual  persons.  We  find  among  them  not  only  the  mer- 
chants and  other  traders  who  constituted  the  dominant  element, 
but  also  citizens  engaged  in  humbler  pursuits.  Altogether  these 
burgomasters  and  schepens  very  fairly  represented  the  commonal- 
ties by  which  they  were  chosen  to  act. 

"Here  then  in  the  Stadt  Huys  of  New  Amsterdam,  the  worthy  mer- 
chants and  brewers,  Indian  traders  and  ship  captains,  who  usually  com- 
posed the  body  of  burgomasters  and  schepens  of  the  little  municipality, 
met  and  passed  their  ordinances  for  the  government  of  the  town,  or  sat 

123 


LEGAL  AND  JUDICIAL 

as  a  court  of  justice  to  consider  the  numerous  and  sometimes  queer  con- 
troversies which  were  brought  before  them.  Naturally  they  were  not 
men  who  were  overstocked  with  legal  lore.  Ponderous  folios  and  quar- 
tos, in  hog-skin,  of  the  civil  and  imperial  laws,  of  the  ordinances  of  the 
States  General  and  of  the  States  of  Holland,  and  the  well-thumbed 
'Rosebooms  Rescued'  of  the  Statutes  and  Customs  of  Amsterdam,  lay  be- 
fore the  magistrates,  inviting  them  to  lose  themselves  in  the  mazes  of 
those  abstruse  treatises;  they  preferred  however,  as  a  rule,  to  render  their 
decisions  by  the  aid  of  what  is  sometimes  known  as  'horse  sense'.  They 
were  fond  of  settling  cases  informally  by  inducing  parties  to  accept  their 
advice  before  going  to  trial;  failing  this  they  were  apt  to  send  the  cases 
for  arbitration  to  one  or  two  good  men ;  whom  they  would  select  out  of 
the  community,  with  instructions  to  reconcile  the  contending  parties,  if 
possible;  in  one  case  in  the  year  1662,  where  a  question  of  the  sewing  ot 
linen  caps  was  involved,  the  court  went  so  far  as  to  appoint  certain  'good 
women'  as  arbitrators."* 

The  burgomasters  of  New  Amsterdam  from  1653  to  1673 
were:  1653,  Arendt  Van  Hattem  and  Martin  Kregier;  1654, 
Arendt  Van  Hattem  and  Martin  Kregier ;  1655,  Oloff  Stevensen 
Van  Cortlandt  and  Allard  Anthony;  1656,  Oloff  Stevensen  Van 
Cortlandt  and  Allard  Anthony ;  1657,  Allard  Anthony  and  Paulus 
Lindersteen  Van  der  Grift;  1658,  Oloff  Stevensen  Van  Cort- 
landt and  Paulus  Lindersteen  Van  der  Grift ;  1659,  Oloff  Steven- 
sen Van  Cortlandt  and  Martin  Kregier;  1660,  Martin  Kregier 
and  Allard  Anthony;  1661,  Allard  Anthony  and  Paulus  Linder- 
*  steen  Van  der  Grift;  1662,  Oloff  Stevensen  Van  Cortlandt  and 
Comelis  Steenwyck;  1663,  Oloff  Stevensen  Van  Cortlandt  and 
Martin  Kregier;  1664,  Paulus  Lindersteen  Van  der  Grift  and 
Cornelis  Steenwyck ;  1665,  Oloff  Stevensen  Van  Cortlandt  and 
Cornelis  Steenwyck ;  1673,  Johannes  Pietersen  Van  Brugh,  Jo- 
hannes de  Peyster  and  Egidius  Luyck ;  1674,  William  Beeckman 
and  Johannes  \'^an  Brugh. 

The  schepens  of  the  same  period  in  New  Amsterdam  were: 


9.    "New  Amsterdam  and  Its  People,"  by  J.  H.  Innes,  p.  i? 

124 


HISTORY  OF  NEW  YORK 

Paulus  Lindersteen  Van  der  Grift,  Maximilianus  Van  Gheel, 
Allard  Anthony,  William  Beeckman,  Pieter  Wolfertsen  Couwen- 
hoven,  Joachim  Pieter  Kuyter,  Oloflf  Stevensen  Van  Cortlandt, 
Johannes  Nevius,  Johannes  de  Peyster,  Johannes  Van  Brugh, 
Jacob  Stryker,  Hendrick  Hendricksen  Kip,  Covert  Loocker- 
manns,  Adriaen  Blommaert,  Hendrick  Jansen  Van  der  Lin,  Cor- 
nelis  Steenvvyck,  Isaac  de  Foreest,  Johannes  Pietersen  Van 
Bmgh,  Jeronimus  Ebbingh,  Jacob  Kip,  Timotheus  Gabry, 
Jacobus  Bancker,  Isaac  Gravenraet,  Jacques  Cousseau,  Nicolaeus 
Meyer,  Christoffel  Hoogland,  Lourens  Van  der  Spiegel,  Gelyn 
Verplanck,  Francis  Rombout  and  Stephen  Van  Cortlandt. 

Jan  Vigne  was  a  son  of  Culeyn  Vigne  and  Ariantje  Culvilje. 
He  was  born  in  New  Amsterdam,  or  came  thither  at  a  very  early 
age.  His  mother,  a  widow,  owned  a  farm  left  by  her  husband,  in 
the  lower  part  of  the  city,  and  on  this  she  had  a  windmill.  She 
died  about  1648,  leaving  this  one  son  and  three  daughters.  One 
of  the  daughters,  Rachel  Vigne,  became  the  wife  of  the  able  and 
notorious  Cornelis  Van  Tienhoven.  Jan  Vigne  occupied  the  farm 
which  his  mother  left  to  him,  and  was  also  a  brewer  and  a  miller. 
The  court  records  of  that  time  show  him  repeatedly  as  plaintiff 
for  damages  caused  to  the  crops  on  his  farm  by  his  neighbor's 
pigs  or  cattle,  or  by  mischievous  boys.  He  was  a  schepen  four 
times  between  1655  and  1663. 

Arendt  Van  Hattam,  who  was  a  burgomaster  in  1653  and 
1654,  and  is  named  first  on  the  list  as  head  of  the  municipality, 
was  a  highly  intelligent  business  man.  Engaged  in  the  peltry 
trade  up  the  Hudson  and  into  the  Indian  country,  he  was  a 
pioneer  in  this  line,  and  one  of  the  most  daring  and  enterprising 
men  of  the  community.  He  was  often  away  from  the  city  on  pri- 
vate or  public  business,  and  in  1653  was  sent  with  Cornelis  Van 
Tienhoven  to  \'irginia  to  negotiate  a  treaty  with  England.    Hav- 

125 


LEGAL  AND  JUDICIAL 

ing  acquired  a  fortune,  and  evidently  tiring  of  his  life  in  this 
country,  he  returned  to  his  native  Holland  soon  after  1653. 

Martin  Kregier  was  not  a  wealthy  man,  but  what  he  lacked 
in  worldly  possessions  he  made  up  in  general  activity,  patriotism 
and  broad  public  spirit.  He  was  one  of  the  earliest  immigrants 
to  New  Amsterdam,  beginning  in  the  service  of  the  West  India 
Company.  Subsequently  he  engaged  in  trading,  and  for  a  time 
was  captain  of  a  sloop  which  he  sailed  between  New  Amsterdam 
and  Albany.  Then  he  received  a  land  grant  in  1643  and  settled 
down  to  prosaic  town  life.  He  owned  a  tavern  located  opposite 
Bowling  Green,  and  there  did  a  successful  business,  gradually 
becoming  a  man  of  prominence.  But  calm  business  pursuits  did 
not  altogether  satisfy  him,  and  he  became  more  distinguished  for 
military  activity  than  for  civic  achievements.  He  was  particu- 
larly devoted  to  military  affairs,  and  gave  much  of  his  time  to 
that  pursuit,  attaining  remarkable  proficiency  as  a  military  cap- 
tain. In  most  of  the  Indian  wars  he  was  an  officer  and  displayed 
much  skill.  He  was  captain  of  one  of  the  militia  companies,  and 
in  1657  was  sent  to  the  Delaware  River  to  settle  the  difficulties 
there.  Again  in  1659  he  was  sent  to  repel  the  English  from  the 
Delaware  River,  and  in  1653  he  went  up  the  Hudson  River  to 
Esopus  in  charge  of  the  expedition  against  the  Indians.  Director 
General  Stuyvesant  held  him  in  high  esteem,  and  he  superin- 
tended the  preparing  of  the  fortifications  of  the  city  in  1654, 
when  the  English  were  expected.  His  taste  for  frontier  life  and 
duty  never  deserted  him,  and  at  an  advanced  age  he  left  New 
Amsterdam  to  settle  in  the  interior  near  to  the  Indians  upon  the 
banks  of  the  Mohawk,  and  there  he  died  at  an  advanced  age  in 

1713- 

Few  men  of  his  time  were  more  active  and  conspicuous  in 

the  colony  than  AUard  Anthony.    He  was  a  merchant,  his  estab- 

126 


HISTORY  OF  NEW  YORK 

lishment  being  at  the  corner  of  Whitehall  and  Marketfield  Streets. 
Representing  a  large  Holland  firm  as  consignee,  he  also  developed 
a  considerable  domestic  trade  in  wholesale  and  retail.  His  wealth, 
his  business  position  and  his  activity,  made  him  a  man  of  great 
influence,  while  by  reason  of  his  conspicuousness,  perhaps,  he 
was  one  of  the  most  unpopular  men  in  the  community,  or,  as  has 
been  said  of  him  by  one  writer,  "he  was  rich,  influential,  con- 
ceited and  unpopular.''  Constantly  involved  in  disputes,  his  law 
suits  with  his  fellow  citizens,  in  which  he  was  as  often  defendant 
as  plaintiflf,  were  numerous.  The  records  of  some  of  the  cases 
in  which  he  was  involved  exhibit  him  in  a  light  not  altogether 
enviable,  and  some  of  them  indicate  that,  to  say  the  least,  some  of 
his  fellow  citizens  did  not  regard  him  as  a  man  of  the  highest 
morality.'*  He  was  a  schepcn  in  1653,  and  a  burgomaster  in 
1655,  1656,  1657,  1660  and  1661.  In  his  later  years,  1662-1673, 
he  was  a  sheriff,  and  in  that  position  managed  the  duties  of  the 
office  in  such  a  severe  and  exacting  manner  that  he  was  nick- 
named "the  hangman."  In  addition  to  his  city  residence  he 
owned  a  farm  outside  the  city  limits.  He  died  in  1685,  in  middle 
age. 

Paulus  Lindersteen  Van  der  Grift  was  one  of  the  first 
pioneers  to  New  Netherland,  and  held  considerable  property  in 
New  Amsterdam  as  early  as  1644.  He  became  a  prominent 
trader  and  a  man  of  wealth.  In  1646  he  was  commander  of  the 
West  India  Company's  ship  the  Great  Gerrit,  one  of  the  four 
vessels  that  comprised  the  fleet  of  Stuyvesant  when  that  gov- 
ernor first  came  to  New  Netherland.  Stuyvesant  appointed  him 
to  be  equipage  master  or  naval  agent,  and  he  was  also  a  military 
commander,  being  captain  of  one  of  the  city  companies  in  1655, 
and  being  held  in  high  esteem  for  both  his  military  and  his  naval 


10.    "Records  of  New  Amsterdam,"  passim. 

127 


LEGAL  AND  JUDICIAL 

experience.  In  1648  he  made  his  permanent  residence  in  New 
Amsterdam,  his  home  being  between  Broadway  and  the  North 
River,  and  he  had  a  farm  in  the  suburbs.  He  owned  a  sloop 
which  traded  in  the  waters  about  New  Amsterdam,  had  a  store 
in  which  he  dealt  in  dry  goods,  groceries  and  other  staples,  and 
became  wealthy.  He  was  prominent  in  the  councils  of  the  city 
and  province  during  the  Dutch  period,  being  a  schcpen  in  1652 
and  1654  and  a  burgomaster  in  1657,  1658,  1661  and  1664.  He 
could  not  regard  the  English  occupancy  with  equanimity,  and 
after  that  became  an  accomplished  fact  he  sold  his  property  and 
returned  to  Holland  in  1669. 

Cornelis  Steenwyck,  who  was  a  schepcn  in  1658  and  1660, 
was  elevated  to  be  a  burgomaster  in  1662,  and  served  again  in 
that  capacity  in  1664,  1665  and  1666.  He  came  first  to  New 
Amsterdam  in  the  government  employ  of  the  West  India  Com- 
pany, when  he  was  only  a  mere  youth,  but  soon  started  out  for 
himself  in  trade,  keeping  first  a  general  store,  and  gradually 
becoming  interested  in  foreign  trade.  He  was  also  a  part  owner 
of  several  ships,  and  had  valuable  business  connections  with 
Holland,  probably  more  extensive  in  this  respect  than  any  other 
merchant  of  the  city.  He  became  one  of  the  most  distinguished 
residents  of  the  city,  a  man  of  intelligence,  and  very  wealthy.  So 
high  did  he  stand  in  the  opinion  of  his  neighbors  and  the  govern- 
ment that  in  1663  the  governor  and  the  magistrates  asked  him 
to  go  to  Holland  to  apprise  the  home  authorities  of  the  danger 
of  attack  from  the  English,  and  to  solicit  aid  for  the  colony.  His 
business  cares  were  such  that  he  could  not  leave  New  Amsterdam 
at  that  time,  and  in  less  than  a  year  the  expected  wresting  of  the 
city  from  the  Dutch  came  about. 

He  was  mayor  of  the  city  in  the  years  1668  to  1670,  and 
again  in  1682  and  1683,  and  the  fact  of  his  appointment  shows 

128 


HISTORY  OF  N EfV  YORK 

the  extent  to  which  the  English  authorities  were  wiUing  to  go  to 
concihate  their  new  Dutch  subjects.  It  is  also  manifest  that  he 
enjoyed  the  entire  confidence  of  his  superiors;  for  not  only  was 
he  made  mayor  of  the  little  city,  but  in  Governor  Lovelace's 
absence  he  was  appointed  acting  governor  for  the  province.  As 
an  evidence  of  his  loyal  spirit  and  a  specimen  of  his  use  of  the 
English  tongue,  there  is  on  record  his  speech  when  an  appeal 
was  made  to  the  citizens  to  aid  the  work  of  fortifying  the  town, 
to  which  many  of  the  Dutch  objected.  "As  the  governor  has 
been  pleased  to  put  the  Honorable  Mayor  and  Aldermen  for  to 
look  to  the  best  of  the  town  and  the  inhabitants  of  t'same,  what 
they  sail  thing  fit  for  the  best  thereof,  he  being  but  ordered  sail 
always  be  found  a  willing  and  faithful  subject." 

Johannes  Pietersen  Van  Brugh,  who  was  a  schepen  several 
years  from  1655  to  1665,  and  subsequently  a  burgomaster,  came 
to  New  Netherland  about  1650  as  a  commissary  in  the  employ 
of  the  West  India  Company.  He  soon  left  that  service  and  en- 
gaged in  trade,  acquiring  a  large  fortune.  He  owned  a  farm  out- 
side the  city  limits  and  a  city  residence  on  Hoogstadt  (Pearl 
street). 

Johannes  De  Peyster,  eldest  son  of  Johannes  de  Peyster  and 
Josine  Martins,  was  born  in  Holland  about  1620.  He  appears 
to  have  come  first  to  New  Amsterdam  for  a  brief  visit  in  01  near 
1645,  returning  and  becoming  a  permanent  settler  a  few  years 
later.  Possessing  by  inheritance  large  wealth  for  that  time,  and 
being  a  man  of  marked  accomplishments  and  ability,  he  imme- 
diately took  position  as  one  of  the  most  substantial  and  influential 
citizens.  In  1653  he  was  assessed  one  hundred  guilders,  only 
eleven  persons  paying  more,  and  was  fifth  on  the  list  of  those 
designated  to  "provisionally  contribute  for  putting  the  city  in  a 
state  of  defence."     In  1654  he  was  fourth  of  those  who  oflfered 

129 


LEGAL  AN D  JUDICIAL 

money  to  build  the  palisades,  and  in  1655  was  sixth  on  the  list  of 
contributors  to  defray  the  debt  for  constructing  the  city  defences. 
He  was  among  those  styled  by  Sir  William  Temple  "renteneers" 
— persons  having  sufficient  wealth  to  produce  a  fixed  income 
adequate  for  the  support  of  themselves  and  their  families,  and 
was  the  first  man  in  New  Amsterdam  who  had  a  family  car- 
riage. For  many  years  he  was  prominent  in  public  affairs.  The 
first  mention  of  him  in  this  connection  after  his  permanent  settle- 
ment in  New  Amsterdam  is  as  cadet  of  a  corps  of  burghers.  In 
1655,  1657,  1658  and  1662  he  was  schepen.  Under  the  first 
English  regime  he  was  an  alderman  in  1666,  1667,  1669  and  1673. 
Upon  the  retaking  of  the  city  by  Admirals  Evertsen  and  Benckes, 
in  1673,  he  welcomed  the  restoration  of  the  Dutch  authority,  and 
was  among  the  influential  residents  sent  for  by  Admiral  Evertsen 
and  advised  with  respecting  the  proper  persons  for  official  trust. 
In  the  following  month  he  was  one  of  the  three  burgomasters 
appointed  by  the  council  of  war,  and  was  also  a  member  of  the 
committee  of  five  to  whom  were  entrusted  preparations  for 
defence  against  the  English.  But  after  the  declaration  of  peace 
between  England  and  Holland  and  the  cession  of  the  province 
and  city  to  England,  he  became  deputy  mayor  in  1677.  It  was 
said  of  him  by  Governor  Dongan  that  he  could  "make  a  better 
platform  speech  than  any  other  man  outside  of  Parliament."  He 
died  about  the  year  1685. 

William  Beeckman,  who  for  nine  years  was  a  burgomaster, 
and,  during  many  years  after  1679  under  the  English,  was  an 
alderman  of  New  Amsterdam,  has  been  well  denominated  as 
"one  of  the  most  faithful  magistrates  of  the  city,"  as  he  was  one 
of  the  earliest.  He  was  a  native  of  Hasselt  Overyssel,  where  he 
was  born  in  1623.  He  came  from  Holland  with  Director  General 
Stuyvesant  on  the  ship  Princess,  and  almost  immediately  upon 

T30 


HISTORY  OF  NEW  YORK 

his  arrival  took  an  active  and  prominent  part  in  affairs.  First  he 
was  a  clerk  with  the  West  India  Company,  but  that  limited  occu- 
pation did  not  appeal  to  him,  and  he  engaged  in  broader  occupa- 
tions. Being  a  man  of  some  means,  he  bought  Corlear's  Hook 
from  Jacob  Van  Corlear,  and  in  time  became  one  of  the  largest 
landed  proprietors  of  New  Amsterdam.  He  was  a  lieutenant  of 
the  burghers  corps  in  165 1,  and  was  a  schcpen  in  1653,  1654,  1656 
and  1657.  At  one  time  he  was  sent  as  commissary  to  the  colony 
on  the  Delaware,  where  he  acted  as  Vice-Director.  Subsequently 
he  was  sent  up  the  Hudson  to  be  the  sheriff  at  Esopus,  and  re- 
mained there  until  1672.  Returning  to  New  Orange  in  1673,  he 
was  again  a  member  of  the  board  of  burgomasters  and  schepcns. 
He  married  Katherine  Van  Broogh,  and  one  of  his  daughters 
married  Nicholas  William  Stuyvesant,  a  son  of  the  director  gen- 
eral. 

Pieter  Wolfertsen  Van  Couwenhoven  was  in  New  Amster- 
dam as  early  as  1633,  ^"d,  with  his  brother  Jacob,  was  engaged 
in  mercantile  pursuits  and  also  in  milling.  Subsequently  he  was 
in  business  apart  from  his  brother,  and  also  was  a  brewer.  Par- 
ticularly active  in  all  measures  for  the  protection  of  the  settle- 
ment against  the  Indians,  he  was  a  lieutenant  under  Martin 
Kregier  in  the  expedition  against  the  savages  at  Esopus,  and  was 
conspicuous  in  the  famous  pursuit  of  the  Indians  when  they  fled 
from  the  soldiers.  In  his  later  days  he  appears  to  have  been 
unfortunate  in  business  affairs,  and  the  closing  years  of  his  life 
were  spent  in  retirement  upon  his  farm  in  New  Jersey.  He  was 
a  schepen  in  1653,  1654,  1658,  1659,  1661  and  1663. 

Timotheus  Gabry  was  a  schepen  in  1660,  1661,  1662  and 
1664.  He  was  the  secretary  of  the  Dutch  colony  on  the  Delaware, 
and  came  to  New  Amsterdam  in  1658.  He  was  a  man  of  very 
good  education,  and  in  1661  was  vendue  master.    By  his  marriage 

131 


LEGAL  AND  JUDICI AL 

to  Margaret  Stuyvesant,  a  half-sister  of  Director  General  Stuy- 
vesant,  he  became  influential  with  the  governor. 

Johannes  Nevius  was  a  schepen,  and  also  was  a  secretary  of 
the  burgomasters  court.  A  native  of  Zoelen,  in  the  Netherlands, 
he  came  to  New  Amsterdam  before  1653.  His  father  was  a 
clergyman,  the  Reverend  Johan  Neeff,  or  Nevius,  and  a  graduate 
of  the  University  of  Leyden.  The  son,  Johannes  Nevius,  was 
born  about  1627,  and  studied  in  the  University  of  Leyden.  In 
New  i\msterdam  he  became  a  merchant  and  an  importer  of  goods 
from  Holland.  He  appeared  frequently  in  the  courts,  being  often 
appointed  as  an  arbitrator,  and  in  1654  he  was  a  defendant  as 
attorney  for  his  father-in-law,  Cornells  de  Potter,  who  was  then 
in  Holland  or  the  East  Indies,  de  Potter  being  sued  by  Pieter 
Cornelisen  Van  de  Vien  for  fitting  out  the  ship  "Neuwe  Liefde" 
(New  Love).  This  case  was  two  years  in  court  before  it  was 
settled.  In  December,  1654,  Nevius  became  a  schepen  to  suc- 
ceed Joachem  Pietersen  Kuyter,  after  that  official  had  been  mur- 
dered by  the  Indians. 

Jacobus  Bancker,  who  was  a  schepen,  in  1660,  and  after- 
ward president  of  the  board  for  one  year,  was  a  store-keeper  and 
a  large  property  owner.  Having  dealings  with  firms  in  Holland, 
he  acquired  considerable  wealth.  He  appears  to  have  gone  back 
and  forth  between  New  Amsterdam  and  Holland  frequently, 
and  the  high  esteem  in  which  he  was  held  by  the  New  Amsterdam 
authorities  is  shown  by  the  fact  that  in  1663,  when  he  was  in 
Holland  with  Jeremias  Van  Rensselaer,  he  was  instructed  to  con- 
fer with  the  authorities  there  in  relation  to  the  condition  of 
affairs  in  New  Netherland.  In  1664  he  was  a  representative 
of  New  Amsterdam  in  the  assembly  vvhich  Governor  Stuyvesant 
called  at  that  time,  and  he  was  one  of  those  who  signed  the 
famous  capitulation  with  the  English. 

132 


HISTORY  OF  NEW  YORK 

Nicholas  De  Mayer  was  mayor  of  the  city  in  1676,  being  the 
second  of  Dutch  birth  to  whom  the  mayoralty  was  intrusted  by 
the  English  authorities.  He  came  from  Holland  while  still  a 
young  man,  and  in  1655  married  a  daughter  of  Ensign  Hendrick 
Van  Dyck.  Under  the  Dutch  regime  he  was  a  schepen,  holding 
that  position  at  the  time  of  the  English  conquest.  After  that  he 
served  frequently  as  alderman ;  indeed,  after  the  granting  of  the 
Dongan  charter,  which  provided  for  assistant  aldermen  from  the 
several  wards,  he  acted  in  the  latter  capacity  in  spite  of  the  fact 
that  he  had  occupied  the  chief  magistracy.  His  trading  opera- 
tions extended  to  Albany,  and  he  acquired  large  estates  on  Man- 
hattan Island.  He  is  said  to  have  owned  property  in  England 
and  Holland  also.  He  died  in  1690,  leaving  six  children,  and  one 
of  his  daughters  married  Philip  Schuyler. 

Jacob  Hendrickszen  Kip,  who  was  the  first  clerk  of  the  court 
of  burgomasters  and  schepens  in  1653,  and  in  subsequent  years 
was  a  schepen  and  president  of  the  board  in  1674,  was  a  native 
of  Amsterdam,  and  was  born  in  1631.  Like  most  of  the  early 
settlers,  he  came  to  New  Amsterdam  in  the  employ  of  the  West 
India  Company,  but  gradually  improved  his  circumstances,  and 
his  natural  ability  was  recognized  by  his  being  made  a  clerk  in  the 
office  of  the  provincial  secretary.  Also  he  was  acting  clerk  of 
Stuyvesant's  Council.  Afterward  he  left  this  official  position, 
and  became  a  general  trader  and  engaged  in  brewing.  He  be- 
came a  prosperous  citizen,  owning  a  farm  and  city  houses,  and 
died  about  1680. 

Other  magistrates  of  New  Amsterdam  who  were  citizens  of 
good  standing  were  Isaac  Gravenraet,  who  kept  a  dry  goods  store, 
and  owned  real  estate,  and  was  a  schepen  in  1664;  Christophel 
Hooghlandt,  who  was  a  respectable  property  holder,  being  a 
schepen  in  1664  and  1674  and  an  alderman  from  1668  to  1678; 

133 


LEGAL  AND  JUDICIAL 

Jacob  Stryker,  who  was  a  farmer,  trader  and  property  owner; 
Jeronimus  Elbingh,  who  w^as  a  merchant  with  extensive  Holland 
connections,  dealing  particularly  in  furs ;  Jacques  Cosseau,  a 
French  Huguenot,  a  schepen  in  1662,  1663  and  1665,  in  1664  was 
one  of  the  Dutch  commissioners  to  negotiate  with  the  English  on 
the  occasion  of  the  occupation  by  Colonel  Nicolls,  and  a  retail 
and  wholesale  storekeeper,  who  became  one  of  the  richest  mer- 
chants in  the  city;  Isaac  De  Foresst,  who  came  in  1665  and 
became  a  large  real  estate  owner,  being  a  schepen  in  1658 ;  Jansen 
Hendrick  Van  der  Vien,  a  merchant  of  respectability,  who  died 
some  time  after  1677;  Jacob  Leendersteen  Ven  der  Grift,  a 
schepen  in  1673,  and  a  patentee  of  Newtown  in  1686. 

In  the  towns  and  villages  outside  of  New  Amsterdam,  the 
magistrates  in  the  last  twenty-five  years  of  the  Dutch  occupation 
were: 

Fort  Orange,  1654-1664: — Sander  Leendertsen,  Pieter 
Hartgers,  Frans  Barentsen,  Pastoor,  Jan  Verbeck,  Jan  Tomassen 
Van  Dyck,  Volckert  Jansen,  Rutger  Jacobsen,  Andries  Herbert- 
sen,  Dirck  Jansen  Croon,  Jacob  Jansen  Schermerhoorn,  Philip 
Pietersen  Schuyler,  Goosen  Gerritsen  Van  Schlack,  Abraham 
Staats,  Adrien  Gerritsen,  Francis  Boon,  Evert  Jansen  Wendel, 
Gerrit  Slechtenhorst,  Stoflfel  Jansen,  Jan  Hendrick  Van  Bael, 
and  Jan  Kostersen  Van  Aecken. 

WiLLEMSTADT,  1673 : — Gerrit  Van  Slechtenhorst,  David 
Schuyler,  Cornelis  Van  Dyck  and  Peter  Bogardus. 

Schenectady,  1673: — Sander  Leend»rtsen  Glen,  Herman 
Vedder  and  Barent  Janse. 

WiLTWYCK,  1661-1664: — Evert  Pels,  Cornelis  Barentsen 
Slecht,  Albert  Heymans,  Tjerck  Claessen  de  Witt,  Albert  Gys- 
bertsen,  Thomas  Chambers,  Gysbert  Van  Imbrock,  and  Jan 
Willemsen  Houghtaling. 

134 


HISTORY  OF  NEfF  YORK 

SwAENENBURGH,  1673-1674: — Comelis  Wyncoop,  Roeloff 
Kierstede,  Wessel  Ten  Broeck,  Jan  Burhans,  Joost  Adriaensen 
and  Cornelis  Hoogeboom. 

Hurley,  1673-1674: — Louis  du  Bois,  Roeloff  Hendricksen 
and  Adriaen  Albertsen  Roose. 

Marbletown,  1673-1674: — Jan  Joosten,  Jan  Broersen  and 
William  Jansen  Schudt. 

Breukelen,  1646-1674: — Jan  Evertsen  Bout,  Huyg  Aertsen 
Van  Rossum,  Frederick  Lubbertsen,  Albert  Cornelissen  Wante- 
naer,  William  Brendenbent,  Joris  Dirksen,  Peter  Cornelissen, 
Joris  Rapelje,  Tennis  Nyssen,  Peter  Montfort,  William  Gerritsen 
Van  Couwenhoven,  Teunis  Jansen,  Thomas  Verdonck,  Teunis 
Gysberts  Bogaert,  Thomas  Lammertse,  and  Rem  Jansen. 

MiDwouT,  1654-1673 : — Jan  Stryker,  Adriaen  Hegeman,  Jan 
Snedecker,  Thomas  Swardwout,  Peter  Lott,  William  Jacobse  Van 
Boerum,  William  Guiljamsen,  William  Willemse,  Jan  Sned,  Jan 
Stryck,  William  Willemse,  William  Jacobse  Van  Boerum,  Hend- 
rick  Jorissen,  William  Guilliamsen,  Auke  Janse  and  Peter  Lott. 

Amersfoort,  1654-1673 : — Elbert  Elbertsen,  Nicholas  Still- 
well,  Cornelis  de  Potter,  Peter  Claessen,  Martin  Jansen  Breuck- 
elen,  Coort  Stevensen  and  Abram  Jorrisen. 

New  Utrecht,  1659-1673: — Jan  Tomassen  Van  Dyck,  Ja- 
cobus Van  Corlear,  Rutger  Joosten  Van  Brunt,  Jacob  Hallekens, 
Balthazaar  Vos,  Jacob  Pietersen,  Francis  de  Bruyn,  Thomas  Jan- 
sen Van  Dyck,  Hendrick  Mattyssen  Smack,  Jan  \^an  Deventer 
and  Jan  Gysbertse  Van  Meteren. 

BoswvcK,  1661-1673: — Peter  Jansen  de  Witt,  Jan  Tilje 
Letelier,  Jan  Cornelissen  Zeeauu,  Ryck  Leydecker,  Jan  Catjouu, 
Gysbert  Teunissen,  Barent  Joosten,  David  Jochimsen,  John 
Lequier,  Hendrick  Barentse  Smith,  and  Volckert  Dirckse. 

Gravesend,    1650-1674: — George   Baxter,  William  Wilkins, 

135 


LEGAL  AND  JUDICIAL 

Nicholas  Stillwell,  James  Hubbard,  William  Bowne,  Edward 
Brouse,  Thomas  Spicer,  John  Cooke,  Samuel  Spicer,  Richard 
Stillwell,  John  Emans,  Barent  Jurisensen,  John  Tilton,  and  Sam- 
uel Holms. 

MiEOLEBURGH,  1652-1673 : — Thomas  Hazard,  Robert  Coe, 
Richard  Gildersleeve,  Henry  Feake,  Richard  Betts,  William 
Palmer,  John  Coe,  Edward  Jessup,  Ralph  Hunt,  Jonathan  Fish, 
Samuel  Coe,  John  Layton,  Francis  Swaine,  William  Bloomfield, 
John  Cochrane,  John  Burroughs,  John  Ransden,  and  Jonathan 
Hazard. 

Flushing,  1648-1673: — John  Townsend,  John  Hicks,  Wil- 
liam Toorn,  John  Underbill,  Thomas  Saul,  Robert  Terre,  William 
Lawrence,  Edward  Farrington,  William  Noble,  William  Hallett, 
John  Hinchman,  Francis  Bloetgoet,  and  Richard  Wildie. 

Hempstead,  1647-1673 : — Richard  Gildersleeve,  John  Sea- 
man, John  Hicks, Coe,  Daniel  Whitehead,  John  Strickland, 

William  Washburn,  Robert  Ashman,  Robert  Forman,  Robert 
Jackson,  John  Smith,  and  William  Jacobs. 

RuTSDORP,  1659-1673: — Benjamin  Coe,  Samuel  Matthews, 
Richard  Everett,  John  Townsend,  Nathaniel  Denton,  Andrew 
Messenger,  Robert  Coe,  Daniel  Denton,  John  Strickland,  Thomas 
Benedict,  John  Carpenter  and  Robert  Ashman. 

Oyster  Bay,  1652-1673: — ^John  Richbell,  Robert  Ferman, 
Nicholas  Wright,  Thomas  Townsend,  and  Nathaniel  Coles. 

Huntington,  1673-1674: — Joseph  Whiteman,  Isaac  Piatt, 
Jonas  Wood,  and  James  Chichester. 

Seatalcot,  1673  : — Richard  Woodhull,  and  John  Bayles. 

Southhampton,  1673: —  Edward  Howell,  and  Joshua 
Barnes. 

Easthampton,  1673: — John  Mulford  and  John  Stretton. 

SouTHOLD,  1673  : — Thomas  Hudson. 

136 


HISTORY  OF  NEW  YORK 

Haerlem,  1660-1673: — Jan  Pietersen  Slot,  Daniel  Terneur, 
Peter  Cressau,  Johannes  la  Montagne,  Philip  Cassie,  Dirck  Claes- 
sen,  Michael  Muyden,  Johannes  Verveelen,  Resolved  Waldron, 
David  des  Marest,  Joost  Van  Oblinis,  Arent  Hermans,  Jan  Peter- 
sen Harling,  Adriaen  Cornelissen,  Jacob  Pietersen  de  Groot,  and 
Wolfert  Webber. 

Westchester,  1656-1673 : — Thomas  Wheeler,  Thomas 
Newman,  John  Lord,  John  Smith,  Josias  Gilbert,  Nicholas  Bay- 
ley,  Thomas  Veall,  Thomas  Mollinaer,  Edward  Waters,  Robert 
Heustis,  William  Betts,  John  Barker,  Nicholas  Bayley,  Edward 
Jessup,  Joseph  Palmer,  and  Richard  Panton. 

Mamaroneck,  1673 : — John  Busset,  and  Henry  Disbrow. 

FoRDHAM,  1673 : — Johannes  Verveelen,  Michael  Bostiaensen, 
and  Valentine  Claessen. 

Eastchester,  1673  : — John  Hoit. 

Staten  Island,  1664-1674: — David  D'amarex,  Pierre  Bil- 

you,   Walraven   Lutten,   Tyse   Barentse,  Leerdart,   Jan 

Willemse,  Gideon  Marlet  and  Nathan  Whiteman. 

Comprised  in  the  foregoing  list  are  the  names  of  many  indi- 
viduals who  were  conspicuous  in  all  the  activities  of  their  gen- 
eration. They  were  energetic  and  influential  in  moulding  the 
life  of  the  communities  in  which  they  lived;  they  laid  the  founda- 
tions for  the  future  commercial  and  industrial  greatness  of  New 
York ;  they  were  wise  administrators  of  the  law  and  some  of 
them  in  their  later  years  were  wise  law-givers ;  they  never  ceased 
in  protesting  and  warring  against  the  autocratic  rule  of  self-con- 
stituted authority,  and  in  their  agitation  for  democratic  institu- 
tions they  sowed  the  seed  of  independence  which  ripened  into 
fruitage  a  century  later.  Many  of  them  bore  names  which  have 
been  historic  in  themselves  and  their  descendants.  Their  worth 
as  citizens  and  their  standing  among  their  neighbors  is  shown  by 

137 


LEGAL  AND  JUDICIAL 

the  fact  that  they  were  repeatedly  called  to  office,  several  of  them 
four  or  five  times  in  a  period  of  ten  years.  This  is  noticeable  in 
the  case  of  the  magistrates  of  Fort  Orange,  and  even  more  so  of 
those  in  the  English  towns  of  Long  Island  and  West- 
chester. 

The  local  schout  fiscals  during  this  period  were : 

Rensselaerswyck — Jacob  Albertsen  ver  Planck,  Adriaen 
Van  der  Donck,  Nicolas  Coorn,  Gerrit  Van  Slechtenhorst,  Cor- 
nelis  Teunissen,  and  Gerrit  Swart. 

Esopus — Roeloflf  Swartwout,  Matthys  Capito,  William 
Beeckman,  and  Isaac  Gravenraet. 

Haerlem — Johannes  la  Montagne,  and  Resolved  Waldron. 

Westchester — Thomas  Wheeler. 

Breukelen — Jan  Teunissen,  David  Provoost,  Peter  Tonne- 
man,  Peter  Hegeman,  Adriaen  Hegeman,  and  Jacob  Stryker. 

Flushing — William  Harck,  John  Underbill,  John  Hicks, 
William  Hallett,  Tobias  Feke,  and  John  Mastine. 

Fort  Orange — Jan  Daniels,  Jacob  Teunissen,  and  Hans 
Vosch. 

Willemstadt  and  Rensselaerswyck — Andrew  Draeyer. 

Schanegtede — ^Jan  Gerritsen  Van  Marcken. 

New  Amsterdam — Joachem  Pietersen  Kuyter,  Jacques  Cor- 
telyou,  and  Pieter  Tonneman. 

New  Orange,  1673 : — Anthony  de  Milt. 

New  Utrecht — Nicasius  de  Sille. 

Gravesend — James  Hubbard,  Richard  Gibbons,  John  Mor- 
ris, John  Cooke,  and  Charles  Morgan. 

Middleburgh — Thomas  Newton,  Elias  Bagley,  and  Thomas 
Pettit. 

The  Five  English  Towns — William  Lawrence  and  Francis 
Bloodgood. 

138 


HISTORY  OF  N EfV  YORK 

South  Seatalcot,  Huntington  and  East  Soutiiold, 
1673  : — Isaac  Arnold. 

Staten  Island,  1673  • — r*etcr  Biljou. 

All  these  magistrates,  as  far  as  can  be  gathered,  were  men  of 
intelligence,  of  independence,  and  with  one  or  two  exceptions, 
of  high  moral  character.  Moreover,  their  knowledge  of  law, 
their  eflfective  methods  of  procedure  and  their  inerrant  sense  of 
right  and  wrong  were  remarkable,  and  the  records  of  their  court 
proceedings  are  a  revelation  of  their  judicial  capacity. 

"Upon  perusing  them  (the  records)  it  is  impossible  not  to  be  struck 
with  the  comprehensive  knowledge  they  display  of  the  principles  of  juris- 
prudence, and  with  the  directness  and  simplicity  with  which  legal  investi- 
gations were  conducted.  In  fact,  as  a  means  of  ascertaining  truth,  and 
of  doing  substantial  justice,  their  mode  of  proceeding  was  infinitely  su- 
perior to  the  more  technical  and  artificial  system  introduced  by  their 
English  successors.  None  of  these  magistrates  were  of  the  legal  pro- 
fession. They  were  all  engaged  in  agricultural,  trading  and  other  pur- 
suits, and  yet  they  appear  to  have  been  well  versed  in  the  Dutch  law, 
and  to  have  been  thoroughly  acquainted  with  the  commercial  usages,  cus- 
toms and  municipal  regulations  of  the  city  of  Amsterdam.  This  is  the 
more  remarkable,  as  a  knowledge  of  the  Dutch  law  at  that  period  was  by 
no  means  of  easy  acquisition.  Though  the  principles  and  practice  of  the 
civil  law  prevailed  in  Holland,  it  was  greatly  modified  by  ancient  usages ; 
some  of  them  of  feudal  origin,  others  the  result  of  free  institutions,  which 
had  existed  from  the  earliest  period;  and  it  had  engrafted  upon  it  a  num- 
ber of  public  regulations  or  ordinances,  emanating  from  the  different  prov- 
inces, as  district  and  partly  independent  sovereignties,  which  had  origi- 
nated either  as  feudal  privileges  or  sprung  up  during  Spanish  domination, 
or  were  the  result  of  the  long  struggle  and  many  political  changes  which 
the  low  countries  had  passed  through  before  the  general  establishment  of 
free  institutions. 

"In  every  town  and  village  in  Holland,  moreover,  there  existed  usages 
and  customs  peculiar  to  the  place,  which  had  the  force  of  law,  and  were 
not  only  different  in  different  towns,  but  frequently  directly  opposite.  The 
Dutch  law,  in  fact,  was  then  a  kind  of  irregular  mosaic,  in  which  might 
be  found  all  the  principles  as  well  as  the  details  of  a  most  enlightened 
system  of  jurisprudence;  but  in  a  form  so  confused  as  to  make  it  ex- 
ceedingly difficult  to  master  it.  That  these  magistrates  should  have  had 
any   general   or   practical   acquaintance   with   such    a    system    at    ail,    was 

139 


LEGAL  AND  JUDICIAL 

scarcely  to  have  been  expected ;  but  that  they  had  is  apparent,  not  only 
from  the  manner  in  which  they  disposed  of  the  ordinary  controversies 
that  came  before  them,  but  in  their  treatment  of  difficult  questions  as  to 
the  rights  of  strangers,  their  familiarity  with  the  complicated  laws  of 
inheritance,  and  the  knowledge  they  displayed  of  the  maritime  law  while 
sitting  as  a  court  of  admiralty."" 

It  was  not  long  before  the  town  grew  in  size  and  importance, 
and  the  diversified  interests  of  individuals  resulted  in  more  fre- 
quent court  appearances,  so  that  litigants  found  it  necessary  to 
employ  others  to  represent  them,  sometimes  a  relative,  and  after  a 
while  professional  notaries ;  thus  notaries  and  advocates  in  time 
became  busy  legal  functionaries.  The  advocates  were  Adriaen 
Van  der  Donck,  Cornelis  de  Potter  and  Francis  le  Bleu.  The 
notaries  were  Dirck  Van  Schelluyne,  David  Provoost,  Johannes 
de  Decker,  Matthias  de  Vos,  Pelgram  Clock,  Tielman  Van  Vleck, 
Solomon  Le  Qair,  Walewyn  Van  der  Veen  and  Allard  Anthony 
in  New  Amsterdam ;  Lodowyck  Cobes  in  Willemstadt  and  John 
Gerritsen  Van  Marck  in  Schenectady.  All  these  men,  evidently 
possessed  of  a  good  education,  must  have  had  much  to  do  with 
establishing  the  mode  of  legal  proceeding  in  New  Amsterdam, 
and  it  may  not  be  doubted  that  the  magistrates,  who  for  the  most 
part  were  not  of  trained  legal  minds,  often  called  them  in  for 
consultation.  Particularly  the  services  of  Van  Schelluyne  and 
De  Sille  were  utilized  in  this  capacity. 

Foremost  among  the  advocates  was  Adriaen  Cornelissen 
Van  der  Donck,  or,  as  he  generally  appears  in  the  older  records, 
Adriaen  Van  der  Donck.  He  is  especially  noteworthy  in  this 
history  as  the  first  legal  practitioner  in  New  Amsterdam.  He 
was  an  educated  Dutch  gentleman,  and  a  native  of  Breda,  where 
he  was  born  in  the  last  year  of  the  sixteenth  century,  and  where 


II.     "Historical  Sketch  of  the  Judicial  Tribunals  of  New  York,  from 
1623-1846,"  by  C.  P.  Daly. 

140 


HISTORY  OF  NEW  YORK 

both  he  and  his  father  were  free  citizens.  Studying  in  the  Uni- 
versity of  Leydcn,  he  was  a  doctor  of  civil  and  canon  law  when, 
in  1641,  he  came  to  New  Netherland  in  the  service  of  Kiliaen 
Van  Rensselaer.  For  several  years  he  was  the  schoitt  fiscal  of 
Rensselaerswyck.  In  1646  he  took  out  a  patent  for  land  north  of 
New  Amsterdam,  on  the  banks  of  the  Hudson  River,  covering  the 
territory  which  in  modern  times  became  the  city  of  Yonkers.  His 
manor  was  known  as  Colon  Donck,  or  Donck's  Colony.  After 
that  he  resided  in  New  Amsterdam,  where  he  became  a  leading 
and  active  citizen.  He  was  especially  prominent  in  the  popular 
movement  for  independent  local  government,  and  was  the  stren- 
uous opponent  of  Directors  Kieft  and  Stuyvesant.  He  was  an 
accomplished  advocate  and  a  man  of  wide  learning  and  knowl- 
edge of  affairs,  and  the  early  records  of  Rensselaerswyck  and 
New  Amsterdam  are  abundant  in  reference  to  him.  It  is  said 
of  him  that  while  schout  fiscal  he  "evinced  always  a  disposition 
to  protect  the  colonists,  and  in  the  prolonged  controversy  in  New 
Amsterdam  he  always  took  sides  with  the  people  against  the  ad- 
ministration." In  1649  he  was  one  of  the  Board  of  Nine  Men 
and,  as  has  already  been  noted,  was  one  of  the  delegates  deputed 
to  present  the  grievances  of  the  colonists  to  the  States  General  in 
Holland.  While  yet  in  Holland,  in  1643,  he  petitioned  the  West 
India  Company  for  license  to  practice  his  profession  in  New 
Amsterdam  upon  his  return  to  America.  The  answer  to  this 
petition  was  contained  in  a  letter  of  the  directors  of  the  company 
to  Director  Stuyvesant,  July  24,  1653. 

"Whereas  Master  Adrian  van  der  Donck  has  presented  to  our  Board 
two  petitions  namely  that  having  received  his  degree  at  law  by  the 
University  of  Leyden  and  been  admitted  to  the  bar  by  the  Court  of 
Holland  he  may  be  permitted  to  practice  as  Attorney  and  Counsellor  in 
New  Netherland  and  further  to  be  allowed  to  examine  the  documents  and 
papers  in  the  Secretary's  office  there  to  complete  his  already  begun   De- 

141 


LEGAL  AND  JUDICIAL 

scription  of  New  N etherland ;  we  have  resolved  on  the  first  to  allow,  that 
according  to  the  usages  of  this  country  he  may  practice  there  as  advocate 
by  assisting  every  one,  who  desires  it,  with  his  advice,  but  as  to  pleading  in 
court,  we  cannot  observe,  that  at  present  it  is  proper  to  allow  because  we 
do  not  know  whether  there  is  somebody  there  of  sufficient  ability  and  the 
necessary  qualifications,  who  before  being  admitted  to  practice  there, 
must  report  to  you  (or  as  the  case  may  be  to  us)  to  act  and  plead  against 
the  said  Van  der  Donck."" 

Particularly  prominent  among  the  notaries  was  Dirck  Van 
Schelluyne,  who  came  to  New  Netherland  in  1641.  He  had  pre- 
viously practiced  law  at  the  Hague.  He  was  commissioned  as  a 
notary  in  New  Amsterdam  in  1650,  his  commission  reading: 

"The  States  General  of  the  United  Netherlands.  To  all  those  who 
shall  see  these  or  hear  them  read.  Health,  Know  ye :  Whereas  we  have  re- 
ceived the  humble  petition  to  us  presented  by  Dirck  Van  Schellyne  Notary 
here  at  the  Hague,  to  empower  him  to  exercise  said  Notarial  profession 
at  the  Manhattans  and  further  throughout  the  whole  of  New  Netherland 
in  all  existing  and  future  colonies  thereof.  Therefore,  on  account  of  the 
good  report  made  to  Us  of  Dirck  van  Schellyne  aforesaid,  and  of  his  utili- 
ty and  fitness,  fully  confiding  in  his  industry  and  fidelity.  We,  the  afore- 
said Dirck  van  Schellyne  have  appointed  and  authorized,  and  do  hereby 
appoint  and  authorize,  to  exercise  the  aforesaid  profession  of  Notary  at 
the  above  named  Manhattans  and  further  throughout  the  whole  of   New 


12.  Van  der  Donck  is  still  remembered  in  historic  annals  as  the  au- 
thor of  one  of  the  earliest  books  descriptive  of  New  Netherland,  "Beschry- 
unge  Van  Neeuw  Nederlant".  The  full  title  page  of  this  work  is  as  fol- 
lows : 

"Description  of  New  Netherland  (as  it  is  to-day)  comprising  the 
nature,  character,  situation  and  fertility  of  the  said  country ;  together  with 
the  advantageous  and  desirable  circumstances  (both  of  their  own  produc- 
tion and  as  brought  about  by  external  causes)  for  the  support  of  people 
which  prevail  there ;  as  also  the  manners  and  peculiar  qualities  of  the 
Wild  Men  or  Natives  of  the  Land.  And  a  separate  account  of  the  won- 
derful character  and  habits  of  the  Beavers,  to  which  is  added  a  Conversa- 
tion on  the  condition  of  New  Netherland  between  a  Netherland  patriot 
and  a  New  Netherlander,  described  by  Adriaen  Van  der  Donck,  Doctor 
in  Both  Laws,  who  is  at  present  still  in  New  Netherlander.  In  Amster- 
dam, at  Evert  Nieuwenhof's,  Bookseller,  dwelling  on  the  Rusland  (street) 
in  the  Writing-book,  Anno,   1655." 

He  was  also  author  of  the  famous  "Remonstrance  of  New  Netherland" 
addressed  to  the  West  India  Company  in  1649,  "Vertoogh  von  Nieu-Nedcr- 
Land  Weghens  de  Gheleghcntheydt.  Lruchtbacrhcydt,  en  Soberen  Staet 
desselfs." 

142 


HISTORY  OF  NEW  YORK 

Netherland,  in  all  actual  and  future  Colonies,  where  the  petitioner  keeps 
his  domicile,  or  may  on  request  of  occasion,  repair,  giving  him  full  power, 
to  draw  up  all  Declarations,  Testaments,  Codicils,  Instruments,  prelimi- 
nary Informations,  Mercantile  and  Marriage  Contracts,  and  other  acts, 
stipulations  necessary  of  use  to  the  Commonalty,  and  moreover  to  do  all 
things  that  a  good  and  faithful  Notary  may  and  ought  to  do,  on  condi- 
tion that  he  shall  be  bound  to  take  at  Our  hands  the  usual  oath  for  the 
due  execution  of  his  office,  which,  being  done,  We  request  and  command 
the  Director  and  Council,  and  all  other  Our  subjects  in  the  aforesaid 
countries  of  New  Netherland,  who  are  now  or  may  be  hereafter  com- 
missioned thither,  whom  this  may  in  any  wise  concern,  to  acknowledge  the 
aforesaid  petitioner  for  Notary  and  to  offer  him  no  let  or  hindrance.'"' 

Early  in  the  administration  of  Stuyvesant,  the  independent 
character  of  Van  Schelluyne  brought  him  into  trouble.  He  en- 
tered a  protest  against  Stuyvesant,  saying  that  he  "dared  not  pre- 
pare any  more  writings,  but  commended  matters  to  God."  Frorn 
the  records  he  appears  to  have  been  an  experienced  and  skillful 
practitioner.  He  was  appointed  court  marshal  or  high  bailiff  to 
levy  executions  and  enforce  processes,  and  after  his  complaint  to 
the  States  General  that  body  sent  positive  orders  to  Stuyvesant  to 
allow  him  to  discharge  the  functions  of  his  profession  without 
interference. 

Solomon  La  Chair  was  another  notary  of  prominence  and  a 
pleader  in  the  courts.  He  was  as  frequently  a  defendant  as  he 
was  attorney  for  plaintiff,  a  man  of  much  spirit  and  notoriously 
contentious,  being  frequently  arraigned  and  fined  for  opposing 
the  officers  in  the  discharge  of  their  duties,  for  violating  municipal 
ordinances,  and  for  other  offences.  Repeatedly  he  was  sued  for 
rent,  for  wages  of  his  servants,  or  for  other  debts.  In  1661  he 
prosecuted  an  action  to  establish  a  claim  for  the  magistrates  of 
the  town  of  Gravesend  as  successors  to  the  title  of  Lady  Deborah 


13-  "Documents  Relative  to  the  Colonial  History  of  the  State  of 
New  York,"  vol.  I,  p.  384.  The  original  of  this  document  is  in  the  Acte 
Book  of  the  States  General  in  the  Roval  Academv  at  the  Hague. 

143 


LEGAL  AND  JUDICIAL 

Moody  against  Evert  Pieters  and  Hermanus  Vedder  as  agents  of 
Gysbert  Van  Opdyck.  The  claim  was  for  the  region  known  as 
Coynen,  or  Coney  Island.  La  Chair  won  the  suit,  and  his  bill  for 
his  services  was  twenty-four  florins,  about  $10.00.  The  follow- 
ing entry  in  his  account  book  shows  how  he  was  paid : 

"Furnished  a  copy  of  this  acc't  to  the  Schout  of  Gravesendes  on  16 
Jan'y  1662,  who  promised  to  pay  me  in  gray  peas,  at  Bearer's  price.  Rec'd 
of  VV'ilhelm  Wilkins,  in  paym't  of  above  acc't,  eight  shekels  of  gray  peas." 

La  Chair  died  insolvent  in  1662  or  1663.  His  will  was  made 
and  signed  December  3,  1662,  when  he  was  "lying  sick  abed." 
It  was  produced  in  court  by  his  widow,  Anneke  Rysens,  March 
29,  1663.  In  the  records  there  is  an  account  of  the  surrender  by 
his  wife  to  his  creditors  of  the  property  that  he  left. 

David  Provoost  was  one  of  the  most  conspicuous  men  of 
his  time  in  New  Amsterdam.  Born  in  Holland  in  1608,  he  came 
out  first  in  1624,  and  returning  to  Holland  married  there  a 
wealthy  wife  whom  he  brought  back  to  America  in  1634.  In  the 
service  of  the  West  India  Company  he  held  the  very  important 
positions  of  commissary  of  provisions  and  inspector  of  tobacco, 
the  latter  being  especially  important,  as  the  culture  of  tobacco 
was  already  assuming  considerable  value.  He  received  grants  of 
land,  so  that  he  became  a  large  property  holder  and  was  also  in 
business  as  a  general  trader.  In  1642  he  was  sent  to  the  Connect- 
icut River  to  take  charge  of  the  Dutch  Fort  Good  Hope,  and 
there  he  demonstrated  remarkable  abilities  as  an  able  and  reso- 
lute commander,  resisting  the  English  at  all  times,  in  the  most 
forcible  manner,  and  proving  a  veritable  thorn  in  their  flesh.  Re- 
turning to  New  Amsterdam  in  1647,  he  became  the  schoolmaster, 
and  at  once  was  foremost  in  the  political  affairs  of  the  time.    In 

1652  he  was  the  second  notary  which  the  city  had  ever  had,  a 

144 


HISTORY  OF  NEfV  YORK 

position  which  was  then  one  of  grave  importance  and  exceed- 
ingly profitable  to  its  holder.  He  was  also  an  attorney  and  coun- 
selor. In  the  same  year  he  was  one  of  the  most  active  members 
of  the  Board  of  Nine  Men,  and  the  sessions  of  that  body  were 
held  in  his  schoolroom.  His  status  in  the  estimation  of  Governor 
Stuyvesant  is  shown  by  the  fact  that  despite  his  taking  part  in  the 
movement  for  popular  government,  he  was  commissioned  in  1653, 
with  Johannes  de  La  Montagne  and  Govert  Loockermans,  to 
meet  the  New  England  commissioners  for  the  purpose  of  investi- 
gating the  charges  which  had  been  promulgated  that  the  Dutch 
were  conspiring  with  Indians  against  the  English.  In  1655  he 
was  appointed  to  be  the  first  schout  of  Breukelen,  and  removed 
to  Long  Island,  and  in  the  following  year  he  was  the  schout  of 
the  three  allied  Dutch  towns — Breukelen,  Amersfoort  and  Mid- 
wout — and  this  position  he  held  until  the  time  of  his  death,  two 
years  later.  He  was  a  man  of  fine  culture,  had  a  thorough 
civil  and  military  education,  and  spoke  Dutch,  French,  English 
and  Latin,  and  several  Indian  tongues ;  a  man  who  would  have 
added  distinction  to  any  community  in  which  he  lived. 

Tielman  Van  Vleck  was  particularly  identified  with  Bergen 
county,  in  New  Jersey,  where  he  had  a  patent  of  land  in  1678, 
and  removed  thither,  being  the  first  schout  of  Bergen.  He  was  a 
Dutchman  from  Bremen,  and  in  1650  he  appeared  as  attorney 
for  the  heirs  of  Barent  Baltus.  Walewyn  Van  der  Veer  was  in 
frequent  trouble  with  the  authorities,  generally  for  contempt  of 
court.  Pelgrum  Qock,  among  his  varied  experiences,  was  once 
suspended  from  practice  for  six  weeks  for  indifference  to  the 
law  of  a  subordinate  court,  and  was  also  sued  for  board.  Mat- 
thias de  Vos,  besides  being  an  advocate,  was  also  bailiff ;  in  1656 
he  was  a  keeper  of  the  city  hall,  and  soon  afterward  marshall. 

Law  books  available  for  the  use  of  these  magistrates,  attor- 

^45 


LEGAL  AND  JUDICIAL 

neys  and  notaries,  were  not  numerous,  but  they  were  sufficient  to 
the  needs  of  the  time,  and  some  of  them  of  a  profound  character 
which  has  left  an  ineffaceable  stamp  upon  modern  legal  thought 
and  practice.  Principal  among  them  were :  "Dissertation  de  usu 
Juris  Romani,"  by  H.  Fagel,  and  J.  C.  Van  der  Hoop.  "Charter- 
bock  der  Graven  Van  Holland,"  by  F.  Van  Mieris  Groot.  "Placaat 
Boek  van  de  Staaten  Generaal  van  Holland,  en  van  Zeeland,"  by 
Deeken  Cau  en  Scheltus.  "Actes  des  Etats  Generaux  de  1600." 
"Recuielles  et  Mis  en  Ordre,"  by  M.  Gachard  Bruzelles.  "Des 
Driot  des  Belgis  et  Gaulois."  Mayers'  "Institutions  Judiciaries." 
"Practyke  ende  Handebouck  in  Criminele  Saecken,"  by  Joost  de 
Damhouder  Van  Brugghe.  "Placards,  Ordinances,  and  Octroys 
of  the  Honorable,  Great  and  Mighty  Lords,  the  States  of  Holland 
and  West  Frieslant."  "The  By-Laws  of  Amsterdam."  "Roose- 
boom's  Recuil  van  Weeten  en  Kostumen  der  Staden  Amsterdam, 
1656."  "The  Dutch  Court  Practices  and  Laws."  "The  Ad- 
miralty Laws"  of  Wisburte.  Van  Sutphen's  "Nederlandse 
Practyke."  At  the  last  meeting  of  the  burgomasters  and  schep- 
ens,  November  9,  1674,  prior  to  the  final  surrender  to  the  English, 
a  record  was  made  of  the  books  in  the  hands  of  the  court  as  fol- 
lows : 

Inventory  of  Books,  &c.,  found  in  the  City  Hall  and  by  order  of  the 
Court  given  in  care  to  the  President  Burgomaster  Johannes  van  Brugh  the 
9th  November  1674 : — 

I.  Book  in  folio  entitled — Placards,  Ordinances  and  Octroys  of  the 
Honble  Great  and  Mighty  Lords  the  States  of  Holland  and  West  Vries- 
lant. 

1.     Ditto.     Placards,  Ordinances  and  the  Lords  States  General. 

I.     Ditto.     Handbook  of  Imperial  and  Civil  Laws. 

I.     Ditto.     Bye   Laws  of  Amsterdam. 

3.    Ditto  in  quarto ;  Consultations  and  Opinions  i  2  and  3d  parts. 

I.     Ditto.     Dutch   Practice  and  Laws. 

I.     Ditto.     Wisbuste  Admiralty  Laws." 


14.    "Records  of  New  Amsterdam,"  vol.  VII,  p.  139. 

146 


CHAPTER  IV 
English  Institutjons  Supersede  the  Dutch 


Duke  of  York  and  Albany,   afterward  James  II  King 
of  England 


-lA  bnK  >hnY  v/^'/  ^o  ?gith  -irii  hrrR  9tKtP  orft  morfv/  rrf 


DUKE  OF  YORK  AND  ALBANY. 

(1633-1701). 

From  whom  the  State  and  the  cities  of  New  York  and  Al- 
bany took  their  names.  Succeeded  his  brother  Charles  II.  in 
1685  as  King  of  England,  and  took  the  title  of  Tame>  II.  of  Eng- 
land and  James  VII.  of  Scotland. 


CHAPTER  IV 

English  Institutions  Supersede  the  Dutch 

1664 — 1683 

GOVERNOR  RICHARD  NICOLLS  TAKES  THE  COLONY  FOR  THE  DUKE  OP 
YORK — THE  "duke's  LAWS"  ADOPTED  BY  THE  HEMPSTEAD 
CONVENTION — NICOLLS'  POLITIC  RULE — THE  NEW  CODE  IM- 
POSED  ONLY   UPON    THE   ENGLISH    SPEAKING   COMMUNITIES 

DUTCH  TOWNS  PERMITTED  TO  RETAIN  THE  CUSTOMS  AND  LEGAL 
METHODS  INSTITUTED  BY  THEM — A  DUAL  LEGAL  SYSTEM — THE 
ENGUSH  CUSTOM  OF  TRIAL  BY  JURY  IS  INSTITUTED — RECORDS 
OF  THE  FIRST  JURY  TRIALS — A  BRIEF  RETURN  TO  DUTCH  RULE 
UNDER  COLVE. 

In  1664  the  colony  of  New  Netherland  passed  from  the  hands 
of  the  Dutch  into  the  possession  of  the  English.  By  a  patent 
dated  March  22  of  that  year,  King  Charles  II.  gave  to  his  brother 
James,  Duke  of  York  and  Albany,  heir-presumptive  to  the  throne 
and  Lord  High  Admiral  of  the  navy,  for  the  consideration  of 
forty  beaver  skins  a  year,  a  vast  extent  of  property  on  the  Ameri- 
can continent.     By  this  patent  the  King  granted : 

"All  that  part  of  the  maine  Land  of  New  England  beginning  at  a  cer- 
tain place  called  or  known  by  the  name  of  St.  Croix  next  adjoining  to 
New  Scotland  in  America  and  from  thence  extending  thereof  to  the  furth- 
est head  of  the  same  as  it  tendeth  Northward ;  and  extending  from  thence 
to  the  River  Kinebeque  and  so  upwards  by  the  shortest  course  to  the 
River  Canada  Northward.  And  also  all  that  Island  or  Islands  commonly 
called  by  the  several  name  or  names  of  Matowacks  or  Long  Island  situate 
lying  and  being  towards  the  West  of  Cape  Cod  and  the  Narrow  Higan- 
setts  abutting  upon  the  main  land  between  the  two  Rivers  there  called  or 

149 


LEGAL  AND  JUDICIAL 

known  by  the  several  names  of  Connecticut  and  Hudson's  River,  togeth- 
er also  with  the  said  River  called  Hudson's  River  and  all  the  Land  from 
the  West  side  of  Connecticut  to  the  East  side  of  Delaware  Bay.  And  also 
those  several  islands  called  or  known  by  the  Names  of  Martin's  Vineyard 
and  Nantukes  otherwise  called  Nantuckett,"  &c. 

Also  by  this  patent  the  King  gave  power : 

"unto  our  said  dearest  brother  James,  Duke  of  York,  his  Heirs,  Depu- 
ties, Agents,  Commissioners  and  Assigns,  full  and  absolute  power  and  au- 
thority to  correct,  punish,  pardon,  govern  and  rule"  the  inhabitants  of  those 
parts  and  places,  "according  to  such  Laws,  Orders,  Ordinances,  Directions 
and  Instruments  as  by  our  said  Dearest  Brother  or  his  Assigns  shall  be 
established ;  And  in  defect  thereof,  in  case  of  necessity,  according  to  the 
good  discretions,  of  his  Deputies,  Commissioners.  Officers  or  Assigns  re- 
spectively; as  well  as  in  all  causes  and  matters  Capital  and  Criminal  as 
civil  both  marine  and  others;  So  always  as  the  said  Statutes,  Ordinances 
and  proceedings  be  not  contrary  to  but  as  near  as  conveniently  may  be 
agreeable  to  the  Laws  Statutes  &  Government  of  this  Our  Realm  of  Eng- 
land, And  saving  and  reserving  to  us  Our  Heirs  and  Successors  the  re- 
ceiving, hearing  and  determining  of  the  Appeal  and  Appeals  of  all  or  any 
Person  or  Persons  of  in  or  belonging  to  the  territories  or  Islands  afore- 
said in  or  touching  any  Judgment  or  Sentence  to  be  there  made  or  given. 
And  further  that  it  shall  and  may  be  lawful  to  and  for  our  Dearest 
Brother  his  Heirs  and  Assigns  by  these  presents  from  time  to  time  to  nom- 
inate, make  constitute,  ordain  and  confirm  by  such  name  or  names  stile  or 
stiles  as  to  him  or  them  shall  seem  good  and  likewise  to  revoke,  dis- 
charge, change  and  alter  as  well  all  and  singular  Governors,  Officers  and 
Ministers  which  hereafter  shall  be  by  him  or  them  thought  fit  and  need- 
ful to  be  made  or  used  within  the  aforesaid  parts  and  Islands;  And  also  to 
make  ordain  and  establish  all  manner  of  Orders,  Laws,  Directions,  Instruc- 
tions, forms  and  ceremonies  of  Government  and  Magistracy,  fit  and  neces- 
sary for  and  Concerning  the  Government  aforesaid,  so  always  as  the 
same  be  not  contrary  to  the  laws  and  statutes  of  this  Our  Realm  of  Eng- 
land but  as  near  as  may  be  agreeable  thereunto.  And  the  same  at  all  times 
hereafter  to  put  in  execution  or  abrogate,  revoke  or  change  not  only  with- 
in the  precincts  of  the  said  Territory  or  Islands  but  also  upon  the  Seas  in 
going  and  coming  to  and  from  the  same  as  he  or  they  in  their  good  dis- 
cretions shall  think  to  be  fittest  for  the  good  of  the  Adventures  and  In- 
habitants there.  And  We  do  further  of  Our  Special  Grace,  certain  knowl- 
edge and  mere  motion  grant,  ordain  and  declare  that  such  Governors,  Of- 
ficers and  Ministers  as  from  time  to  time  shall  be  authorized  and  appointed 
in  the  manner  and   form  aforesaid  shall  and  may  have  full  power  and 


HISTORY  OF  NEW  YORK 

authority  to  use  and  exercise  Martial  Law  in  cases  of  Rebellion,  Insurrec- 
tion and  Mutiny  in  as  large  and  ample  Manners  as  Our  Lieutenants  in  Our 
Counties  within  Our  Realm  of  England  have  or  ought  to  have  by  force 
of  their  Commission  of  Lieutenancy  or  any  Law  or  Statutes  of  this  Our 
Realm.'" 

Colonel  Richard  Nicolls,  a  valiant  soldier,  who  had  long  been 
engaged  in  the  service  of  the  Duke  of  York,  was  appointed  to  be 
Deputy  Governor  over  all  the  property  covered  by  this  patent. 
Governor  Nicolls  arrived  in  the  bay  before  New  Amsterdam  with 
a  fleet  of  four  vessels  in  August,  1664,  and  after  a  few  days  of 
negotiation  the  city  surrendered  to  him  without  resistance,  Sep- 
tember 5.  The  duke's  commission  gave  to  his  deputy  authority 
"to  perform  and  exact  all  and  every  the  powers"  granted  by  the 
royal  patent.  The  proclamation  which  Nicolls  and  his  associate 
commissioners,  Cartwright  and  Carr,  issued  to  the  inhabitants  of 
New  Amsterdam  from  the  fleet  in  New  Utrecht  Bay,  promised 
that  all  those  who  submitted  to  his  majesty's  government  should 
have  the  protection  of  his  laws  and  justice,  "and  all  other  privi- 
leges with  his  majesty's  English  subjects."  Terms  of  capitula- 
tion were  entered  into  between  Colonel  Nicolls  and  Director  Gen- 
eral Stu}'vesant,  and  by  these  it  was  agreed  that  those  of  the  in- 
habitants who  desired  might  return  to  Holland,  while  those  who 
remained  should  continue  to  enjoy  the  rights  of  citizens.  These 
ordinances  of  capitulation,  twenty-four  in  number,  were  signed 
September  6,  1664,  by  Johannes  De  Decker,  Nicholas  Varleth, 
Samuel  Megapolensis,  Cornelis  Steenwyck,  Jacques  Cousseau  and 
Oloff  Stevensen  Van  Cortlandt,  on  the  part  of  the  Dutch,  and 
Robert  Carr,  George  Cartwright,  John  Winthrop,  Samuel  Wyllys, 
John  Pynchon  and  Thomas  Clarke,  on  the  part  of  the  English. 


I.  "History  of  the  State  of  New  York,"  by  J.  R.  Brodhead,  vol.  II, 
p.  651.  A  parchment  duplicate  of  this  patent  is  in  the  State  Library  in 
Albany.    The  original  is  in  the  Public  Record  Office  in  London. 


LEGAL  AN D  JUDICI AL 

By  the  terms  of  capitulation  the  particular  stipulations  as 
to  the  legal  status  of  the  Dutch  and  the  future  judicial  adminis- 
tration of  the  colony  were  comprised  in  the  following  articles : 

"XI.  The  Dutch  should  all  enjoy  their  own  customs  concerning  their 
inheritance. 

"XII.  All  publique  writings  and  records,  which  concern  the  inherit- 
ances of  any  People,  or  the  reglement  of  the  church  or  poor,  or  orphans 
shall  be  carefully  Kept  by  those  in  whose  hands  now  they  are,  and  such 
writings  as  particular  concern  the  States  General  may  at  any  time  be  sent 
to  them. 

"XIII.  No  judgment  that  lias  passed  any  judicative  here  shall  be 
called  in  question;  but  if  any  conceive  that  he  hath  not  had  justice  done 
him,  if  he  apply  himself  to  the  States  General,  the  other  party  shall  be 
bound  to  answer  for  the  supposed  injury. 

"XVI.  All  inferior  civil  officers  and  magistrates  shall  continue  as 
now  they  are  (if  they  please)  till  the  customary  time  of  new  elections, 
and  then  new  ones  to  be  chosen  by  themselves,  provided  that  such  new 
chosen  magistrates  shall  take  the  oath  of  allegiance  to  his  majesty  of 
England  before  they  enter  upon  their  office. 

"XVII.  All  differences  of  contracts  and  bargains  made  before  this 
day,  by  any  in  this  country  shall  be  determined  according  to  the  manner 
of  the  Dutch."* 

Immediately  upon  assuming  the  government  of  the  colony, 
Nicolls  changed  its  name  as  well  as  that  of  the  city ;  New  Nether- 
land  and  New  Amsterdam  both  became  New  York.  Carefully 
adhering  to  the  terms  of  capitulation,  he  proceeded  cautiously, 
particularly  refraining  from  any  interference  with  the  municipal 
government  and  the  administration  of  justice.  In  less  than  a 
week  after  the  surrender,  the  burgomasters  and  schepens  re- 
sumed their  meetings  and  directed  municipal  affairs,  while  the 
administration  of  justice  went  on  as  it  had  during  the  seventeen 
years  of  Stuyvesant's  control.  The  burgomasters  and  schepens 
could  not,  however,  refrain   from  expressing  their  sorrow  over 


2.     "History  of  the  State  of  New  York,"  by  J.  R.  Brodhead,  vol.  I,  ap- 
pendix, p.  762. 


HISTORY  OF  N  EJV  YORK 

the  change  which  had  removed  them  from  under  the  flag  of  their 
beloved  Holland.  At  once  they  addressed  a  letter  to  the  directors 
of  the  West  India  Company  announcing  the  capitulation,  and 
giving  the  reasons  why  they  deemed  it  best  to  accept  the  situation 
and  remain  under  the  rule  of  the  English.^ 

"The  Court  resolves  to  write  the  following  to  the  Lords  Directors : 
Right    Honble    Prudent    Lords,   the   Lords    Directors    of    the    Honble 
West  India  Company,  Department  of  Amsterdam. 
Right  Honble  Lords, 

"We.  your  Hon^s  loyal,  sorrowful  and  desolate  subjects,  cannot  neg- 
lect nor  keep  from  relating  the  event,  which  thro'  God's  pleasure  thus 
unexpectedly  happened  to  us  in  consequence  of  your  Hours  neglect  and 
forgetfulness  of  your  promise." 

Then  follows  an  account  of  the  capture  of  the  city  by  the 
English. 

"Meanwhile,  since  we  have  no  longer  to  depend  on  your  Honours' 
promises  of  protection,  we,  with  all  the  poor,  sorrowing  and  abandoned 
Commonalty  here  must  fly  for  refuge  to  the  Almighty  God,  not  doubting 
but  He  will  stand  by  us  in  this  sorely  afflicting  conjuncture  and  no  more 
depart  from  us :  .A.nd  we  remain— Understood — your  sorrowful  and  aband- 
oned subjects — was  signed, 

"Pieter  Tonneman,  (Schout)  Paulus  Leenderzen  van  der  Grift  and 
Cornelis  Steenwyck  (^Burgomasters),  Jacob  Backer,  Tomotheus  Gabry, 
Isaack  Graevenraat,  and  Nicholaas  de  Meyer  {Schepens).  Done  in  Jorck 
heretofore  named  Amsterdam  in  New  Netherland  Ao.  1664  the  i6th  Sep- 
tember." 

Without  delay  the  governor  went  forward  to  the  organiza- 
tion of  a  new  provincial  government.  Captain  Matthias  Nicolls, 
a  lawyer  from  Islip,  Northamptonshire,  who  had  come  out  with 
the  expedition,  was  appointed  secretary  of  the  province.  Robert 
Needham  and  Thomas  Delavall,  from  England,  Thomas  Topping 
and  William  Wells,  of  Long  Island,  and  Secretary  Nicolls,  con- 


3.    "Records  of  New  Amsterdam,"  vol.  V,  pp.   1 14-116. 


LEGAL  AND  JUDICIAL 

stituted  the  Council.  Cornells  Van  Ruyven,  who  had  been  secre- 
tary of  Stuyvesant's  council,  and  Johannes  Van  Brugh,  schcpen, 
were  sometimes  called  in  to  advise  the  council  in  regard  to  the 
affairs  of  the  Dutch  citizens  with  which  the  English  naturally 
were  not  well  versed. 

Having  peacefully  accomplished  the  subjection  of  New  Am- 
sterdam, the  governor  turned  his  attention  to  the  Dutch  settle- 
ments up  the  river,  as  it  was  most  important,  without  delay,  to 
bring  these  also  under  the  Duke's  authority.  Commissioner  Cart- 
wright  was  sent  up  the  Hudson  to  do  this  work.  The  people  of 
Fort  Orange  offered  no  resistance  to  the  English,  but  peacefully 
accepted  the  new  condition  of  things.  The  name  of  the  town 
was  changed  to  Albany,  and  Cartwright  granted  that  all  the  in- 
ferior officers  and  magistrates  should  continue  in  control  of  local 
affairs.  In  Esopus,  some  slight  opposition  was  manifested,  but 
the  inhabitants  soon  yielded,  and  they  were  reconciled  by  the 
considerate  treatment  which  was  accorded  them,  especially  in 
the  retention  of  their  local  officers,  among  them  being  William 
Beeckman  as  schout. 

In  February  of  the  following  year,  1665,  new  magistrates 
were  chosen  for  New  Amsterdam  according  to  the  Dutch  law, 
and  they,  with  the  inhabitants  of  the  city,  were  compelled  to  take 
an  oath  of  allegiance  to  their  new  masters.  Some  resentment 
was  manifested  at  this  demand;  some  of  the  inhabitants  would 
not  take  the  oath,  but  the  majority  acquiesced  in  the  situation. 
Pieter  Tonneman,  the  schout,  refused  to  submit  and  returned  to 
Holland ;  Allard  Anthony  was  chosen  to  succeed  him,  and  the 
other  new  magistrates  were :  Cornelis  Steenwyck  and  Oloff  Stev- 
ensen  Van  Cortlandt,  burgomasters;  Timotheus  Gabry,  Johannes 
Van  Brugh,  Johannes  de  Puyster,  Jacob  Kip,  schepens;  and  Allard 
Anthony,  schout. 

154 


HISTORY  OF  N  EW  YORK 

Governor  Nicolls  brought  with  him  a  code  of  laws  for  the 
colony.  It  was  long  believed  that  this  code,  famous  as  the  first 
set  of  laws  prepared  for  the  colony,  was  drawn  up  by  Clarendon, 
lord  chancellor  of  England  and  the  first  lord  of  the  Committee  on 
Foreign  plantations — the  father-in-law  of  the  Duke  of  York. 
That  statement  is  no  longer  credited  however,  documents  and 
letters  to  the  contrary  having  eflfectually  disproved  it.'' 

The  governor  called  a  delegate  convention  to  meet  in  Hemp- 
stead, Long  Island,  in  February,  1665,  to  consider  these  laws. 
The  convention  was  made  up  of  two  delegates  from  each  town 
of  Long  Island  and  Westchester  county,  some  of  whom  had  been 
members  of  the  Dutch  general  assembly  in  the  preceding  year. 
Its  composition  was  as  follows : 

New  L^trecht,  Jacques  Corteleau  and  Younger  Hope; 
Gravesend,  James  Hubbard  and  John  Boone ; 
Flatlands,  Elbert  Elbertsen  and  Roeloff  e  Martense ; 
Flatbush,  John  Striker  and  Hendrick  Gucksen ; 
Bushwick,  John  Stealman  and  Guisbert  Tunis ; 
Brooklyn,  Hendrick  Lubbertsen  and  John  Evertsen; 
Newtown,  Richard  Betts  and  John  Coe ; 
Flushing,  Elias  Doughty  and  Richard  Cornhill ; 
Jamaica,  Daniel  Denton  and  Thomas  Benedict ; 
Hempstead,  John  Hicks  and  Robert  Jackson ; 
Oyster  Bay,  John  Underbill  and  Mathias  Harvey ; 
Huntington,  Jonas  Wood  and  John  Ketcham ; 
Brookhaven,  Daniel  Lane  and  Roger  Barton ; 
Southold,  William  Wells  and  John  Youngs ; 
Southampton,  Thomas  Topping  and  John  Howell ; 
Easthampton,  Thomas  Baker  and  John  Stretton ; 
Westchester,  Edward  Jessup  and  John  Quimby ; 

The  convention  was  in  session  two  or  three  days,  but  little 
was  permitted  to  it  save  to  accept  the  code  substantially  as  pre- 
sented by  the  governor.    It  was  a  mere  pretense  of  popular  par- 


4.    "Clarendon  Papers." 


LEGAL  AND  JUDICIAL 

ticipation  in  legislation,  serving  only  to  promulgate  the  will  of 
the  royal  proprietor  of  the  province.  Some  discussion  arose  over 
its  measures,  and  there  were  some  declarations  of  disapproval, 
but  these  were  of  slight  weight.  Nicolls  made  a  few  minor  con- 
cessions to  the  opinions  expressed  by  the  delegates,  and  the  code 
was  then  accepted  without  dissent.  Before  adjourning  the  con- 
vention voted  a  loyal  address  to  the  Duke  of  York  accepting  the 
patent,  acknowledging  dependence  upon  the  patentee,  and  con- 
cluding: 

"We  do  publicly  and  unanimously  declare  our  cheerful  submission  to 
all  such  laws,  statutes  and  ordinances  which  are,  or  shall  be,  made  by  virtue 
of  authority  from  your  royal  highness  his  heirs  and  successors  forever." 

The  code  then  adopted  and  promulgated  has  been  ever  since 
known  as  "The  Duke's  Laws".  It  was  the  first  comprehensive 
code  of  the  colony,  and  although  subsequently  set  aside,  it  was 
the  foundation  of  the  legal  and  judicial  institutions  which  New 
York  province  and  state  have  since  possessed.  Largely  com- 
piled from  the  laws  which  were  then  in  existence  in  the  other 
English  colonies  of  America,  it  was  based  on  the  English  con- 
stitution, and  in  it  almost  no  consideration  was  given  to  Dutch 
proceedings  or  laws.  One  peculiarity  conspicuous  in  it  was  the 
adoption  of  the  Mosaic  laws  from  the  code  of  the  Connecticut 
Colony,  of  which  they  formed  a  constituent  part ;  in  the  New 
York  code,  however,  the  Scripture  readings  and  the  Bible  texts 
cited  in  the  original  were  dropped.  At  the  session  of  the  general 
court  of  Connecticut,  of  New  Haven,  April  3,  1644,  the  act  adopt- 
ing the  Mosaic  laws  was  passed  as  follows : 

"It  was  ordered  that  the  judicial  lawes  of  God  as  they  were  delivered 
by  Moses  and  as  they  are  a  fence  to  the  morall  law,  being  neither  typicall 
nor  cerimoniall,  nor  had  any  reference  to  Canaan,  shall  be  accounted  of 
morrall  equity  and  gen^^liy  bind  all  offendo''s,  and  be  a  rule  to  all  courts 

156 


HISTORY  OF  NEW  YORK 

in    this   jurisdiction    in    their    proceeding   against   oflFendo's,    till    they    be 
branched  out  into  particulars  hereafter.'" 

Like  the  codes  of  New  England,  the  new  code  for  New  York 
was  arranged  in  an  alphabetical  order  of  subjects  treated.  The 
general  provisions  were  as  follows  :® 

Particular  provision  was  made  for  town  governments.  The 
several  towns  were  authorized  annually  on  the  first  or  second  day 
a  subsequent  amendment,  four  overseers.  These  overseers  were 
of  April,  to  elect  a  constable,  and  at  first  eight,  and  afterward,  by 
the  assessors  of  the  town,  and  with  the  constable  were  empow- 
ered to  make  regulations  respecting  matters  which  concerned  the 
police  and  good  government  of  the  town.     The  constable  and 


5.  "Records  of  the  Colony  and  Plantation",  "New  Haven  Colony  Rec- 
ords of  1638-1649,"  by  Charles  J.  Hoadley,  p.  130. 

6.  A  parchment  copy  of  this  code,  certified  by  Matthew  Wren,  Secre- 
tary of  the  Duke  of  York  as  "concordat  cum  originale,"  now  faded  with 
age  and  indistinct,  is  in  the  New  York  State  Library.  A  copy  is  in  vol- 
ume I  of  patents  in  the  office  of  the  Secretary  of  State  in  Albany.  It  has 
been  reprinted  in  full  in  the  "Report  of  the  Regents  of  the  University  on 
the  Boundaries  of  the  State  of  New  York,"  1873  and  in  "The  Colonial 
Laws  of  New  York,"  vol.  i,  pp.  6-73.  When  the  code  was  promulgated  in 
March,  1665,  copies  were  sent  to  the  several  ridings  constituting  York- 
shire. The  Easthampton  copy  has  been  preserved  in  the  office  of  the  town 
clerk.  Another  copy  was  filed  in  the  clerk's  office  of  Hempstead,  but 
when  North  Hempstead  was  erected  from  Hempstead  it  was  filed  in 
Roslyn  in  the  office  of  the  clerk  of  the  former  town.  It  is  now  owned 
by  the  Long  Island  Historical  Society.  The  Easthampton  copy  was 
printed  in  the  collections  of  the  New  York  Historical  Society,  181 1,  vol. 
I.  P-  305.  The  amendments  to  the  code  are  in  "The  Colonial  Laws  of 
New  York",  vol.   I,  pp.  73-99.     The   Easthampton  copy  bears  this  title : 

"Established  by  the  Authority  of  his  Majesties  Letters  patents  granted 
to  his  Royall  Highness  James  Duke  of  Yorke  and  Albany ;  Bearing  Date 
the  I2th  Day  of  March  in  the  Sixteenth  year  of  the  Raignc  of  our  Sover- 
eigne  Lord  Kinge  Charles  the  Second. 

"Digested  into  one  Volume  for  the  publicke  use  of  the  Territoryes  in 
America  under  the  Government  of  his  Royall   Highness. 

"Collected  out  of  the  Severall  Laws  now  in  force  in  his  Majesties 
American  Colonyes  and  plantations. 

"Published  March  the  i8th  Anno  Domini  1664  at  an  General  meeting  at 
Hemsted  upon  Longe  Island  by  virtue  of  a  Commission  from  his  Royall 
Highness  James  Duke  of  York  and  Albany  given  to 

"Colonel  Richard  Nicolls  Deputy  Governor  bearing  date  the  Second 
day  of  Aprill  1664." 


LEGAL  AND  JUDICIAL 

overseers  were  required  annually  to  appoint  two  of  the  overseers 
to  make  the  rate  for  building  and  repairing  the  church,  for  the 
maintenance  of  the  minister,  and  for  the  support  of  the  poor. 
From  the  overseers  the  constable  selected  the  jurors  who  at- 
tended the  courts  of  sessions  and  assize.  Every  town,  at  its  own 
expense,  must  provide  a  pair  of  stocks  for  offenders  and  a  pound 
for  cattle,  besides  prisons  and  pillories  in  places  where  courts  of 
session  were  held. 

The  principal  courts  established  by  these  laws  were  the  town 
court,  the  court  of  sessions,  and  the  court  of  assize.  The  town 
court  was  composed  of  the  constable  and  overseers.  It  had  cog- 
nizance of  all  causes  of  debts,  and  trespass  under  five  pounds ; 
and  the  justice  of  the  peace  was  authorized,  but  not  required,  to 
preside  in  the  court.  A  court  of  sessions  was  decreed  for  each 
riding  of  Yorkshire,  and  a  court  of  assize,  composed  of  the  gov- 
ernor and  other  officials,  was  constituted  as  the  highest  judicial 
tribunal. 

All  actions  of  debts,  accounts,  slander,  and  actions  on  the 
case  concerning  debts  and  accounts,  were  to  be  tried  in  the  juris- 
diction where  the  cause  of  action  arose.  Debts  and  trespasses 
under  five  pounds  were  to  be  arbitrated  by  two  persons  selected 
by  the  constable  of  the  place,  and,  if  either  party  refused,  the 
justice  of  the  peace  should  choose  three  arbitrators,  whose  award 
should  be  final.  All  actions  or  cases  from  five  to  twenty  pounds 
were  to  be  tried  at  the  sessions,  from  whence  there  should  be  no 
appeal.  Any  person  falsely  pretending  greater  damages  or  debts 
than  due,  to  vex  his  adversary,  should  pay  treble  damages.  If 
the  action  be  entered  and  the  parties  compromise  it,  yet  the  agree- 
ment should  be  entered  by  the  clerk  of  the  court. 

Upon  the  death  of  any  person,  the  constable  and  two  over- 
seers should  repair  to  the  house  of  the  deceased  to  inquire  after 

158 


HISTORY  OF  NEW  YORK 

the  manner  of  the  death,  and  whether  he  left  any  last  will  or  tes- 
tament. But  no  administration  should  be  granted,  except  to  the 
widow  or  child,  until  the  third  session  after  the  person's  death. 
The  surplus  of  the  personal  estate  was  divided  as  follows :  one- 
third  to  the  widow,  and  the  other  two-thirds  among  the  children, 
except  that  the  eldest  son  should  have  a  double  portion. 

All  amercements  and  fines,  not  expressly  regulated  by  law, 
were  to  be  imposed  at  the  discretion  of  the  court. 

No  justice  of  the  peace  who  had  sat  upon  or  voted  in  any 
case,  should  have  any  voice  in  the  court  to  which  appeal  was 
made.  Parties  appealing  must  give  security ;  and  in  criminal 
cases  also  give  security  for  good  behavior  until  the  matter  should 
be  decided. 

No  arrest  could  be  made  on  the  Sabbath,  or  "day  of  humilia- 
tion for  the  death  of  Charles  the  First,  of  blessed  memory,"  or 
the  anniversary  of  the  restoration  of  Charles  the  Second,  except 
of  rioters,  felons,  and  persons  escaped  out  of  prison.  Persons 
necessarily  attending  courts  should  be  exempt  from  arrest.  All 
arrests,  writs,  warrants  and  proclamations  were  to  be  in  the  name 
of  his  majesty. 

All  assessments  were  to  be  made  by  the  constable  and  eight 
overseers  of  the  parish,  proportionable  to  the  estate  of  the  inhab- 
itants; and  the  justices  of  the  peace  were  exempt  from  assess- 
ments during  their  continuance  in  office,  except  only  for  pay- 
ments to  the  church. 

Persons  of  known  ability,  when  imprisoned,  must  pay  for 
their  support  till  the  second  day  of  the  next  session  after  their 
arrest,  and  longer  if  there  be  a  concealment  of  property. 

To  rebuke  an  officer  with  foul  words,  so  that  he  depart 
through  fear  without  doing  his  office,  should  be  taken  for  an 
assault.  A  servant  or  workman  convicted  of  assaulting  his  mas- 
ter or  dame  should  be  imprisoned. 

159 


I 


LEGAL  AND  JUDICIAL 

No  foreigner  or  stranger  could  have  attachment  against  an 
inhabitant  without  giving  security  for  costs. 

No  justice  of  the  peace,  sheriff,  constable  or  clerk  of  the 
court  while  in  office  should  be  permitted  to  be  attorney  in  any 
case,  unless  assigned  by  the  court  on  request. 

No  Christian  should  be  kept  in  bond,  slavery  or  captivity, 
except  persons  adjudged  thereto  by  authority,  or  such  as  had 
willingly  sold  or  might  sell  themselves. 

Every  town  must  set  out  its  bounds  within  twelve  months 
after  they  were  granted,  and  it  was  required  that  once  in  three 
years  the  oldest  town  should  give  notice  to  the  neighboring  towns 
to  go  the  bounds  between  their  towns  and  to  renew  their  marks ; 
the  time  for  perambulation  to  be  between  the  twentieth  and  the 
last  day  of  February,  under  the  penalty  of  five  pounds  for  neglect 
thereof.  Owners  of  adjoining  lands  were  required  to  go  the 
bounds  between  their  lands  once  a  year  if  requested,  under  pen- 
alty of  ten  shillings. 

No  person  was  permitted  to  follow  the  business  of  brewing 
beer  for  sale,  but  those  skilled  in  the  art. 

The  name  and  surname  of  every  inhabitant  in  the  several 
parishes  must  be  registered ;  and  it  was  provided  that  the  minister 
or  town  clerk  should  truly  and  plainly  record  all  marriages,  births, 
and  burials,  in  a  book  to  be  provided  by  the  church-wardens. 

It  was  provided  that  no  body  should  be  buried  except  in 
public  places,  and  in  the  presence  of  three  or  four  of  the  neigh- 
bors, one  of  whom  should  be  an  overseer  of  the  parish. 

Persons  punishable  with  death  were  those  who  should  in  any 
wise  deny  the  true  God  and  his  attributes,  or  be  guilty  of  any  of 
the  following  crimes:  wilful  and  premeditated  murder;  slaying 
another  with  a  sword  or  dagger,  that  hath  not  any  weapon  to 
defend   himself;   laying  in   wait;   poisoning  or  any  other   such 

i6o 


HISTORY  OF  N EW  YORK 

wicked  conspiracy ;  lying  with  any  brute  beast,  (and  the  beast  to 
be  burned)  ;  man-steahng;  taking  away  Hfe  by  false  and  malicious 
testimony,  denying  his  majesty's  right  and  title  to  his  crown  or 
dominions ;  treacherously  conspiring  or  publicly  attempting  to 
invade  or  surprise  any  town  or  fort  within  this  government,  or 
resisting  the  king's  authority  by  arms ;  children  above  the  age  of 
sixteen,  and  of  sufficient  understanding,  smiting  their  natural 
father  or  mother,  unless  thereto  provoked  or  forced  in  self 
defence. 

Married  persons  committing  adultery  with  a  married  man 
or  woman,  both  were  to  be  grievously  fined  and  punished,  as  the 
governor  and  council  or  court  of  assize  should  think  meet,  not 
extending  to  life  or  member.  Any  man  "lying  with  mankind,  as 
he  lieth  with  a  woman,"  both  to  be  put  to  death,  except  when 
dther  party  might  be  under  fourteen  years  of  age  or  be  forced. 

Cattle  and  hogs  must  be  marked  with  the  public  mark  of 
the  town  and  the  private  mark  of  the  owner,  and  horned  beasts 
marked  upon  the  horn. 

Every  cause  of  £5  or  under  must  pay  a  tax  of  2s.  6d. ;  of 
iio,  5s.;   from  £10  to  £20,  los. ;   and  for  every  £10  more  2s.  6d. 

"Whereas  the  public  worship  of  God  is  much  discredited 
for  the  want  of  painful  and  able  ministers  to  instruct  the  people 
in  the  true  religion,  and  for  want  of  convenient  places  capable 
to  receive  any  assembly  of  people  in  a  decent  manner,  for  cele- 
brating God's  holy  ordinances,"  it  was  ordered  that  a  church 
should  be  built  in  the  most  convenient  part  of  each  parish  capable 
to  receive  and  accommodate  two  hundred  persons.  To  prevent 
scandalous  and  ignorant  pretenders  to  the  ministry  from  intrud- 
ing themselves  as  teachers,  no  minister  could  be  admitted  to 
officiate  within  the  government,  but  such  as  should  produce  tes- 
timonials to  the  governor  that  he  received  ordination  either  from 

161 
11 


LEGAL  AND  JUDICIAL 

some  Protestant  bishop  or  ministers  within  some  part  of  his 
majesty's  dominions,  or  the  dominions  of  any  foreign  prince  of 
the  reformed  rehgion ;  upon  which  testimonials  the  governor 
should  induct  the  said  minister  into  the  parish  that  should  make 
presentation  of  him.  Ministers  of  every  church  must  preach 
every  Sunday,  and  pray  for  the  King,  Queen,  Duke  of  York 
and  the  royal  family ;  and  marry  persons  after  legal  publication 
or  license.  No  person  should  be  molested,  fined  or  imprisoned, 
for  differing  in  judgment  in  matters  of  religion,  who  professed 
Christianity.  Church-wardens  must  report  twice  a  year  of  all 
profaneness,  Sabbath  breaking,  fornication,  adultery,  and  all 
such  abominable  sins.  No  person  employed  about  the  bed  of 
any  man,  woman  or  child,  as  surgeon,  midwife,  physician  or 
other  person,  should  exercise  or  put  in  practice  any  art  contrary 
to  the  known  rules  of  the  art  in  such  ministry  or  occupation. 

The  constable  should  whip  or  punish  any  one,  when  no- 
other  officer  was  appointed  to  do  it. 

All  sales  and  alienations  of  property  must  be  by  deed,  or 
last  will  and  testament. 

No  condemned  person  could  be  buried  near  the  place  of 
execution. 

A  woman  causelessly  absenting  herself  from  her  husband 
and  refusing  to  return,  forfeited  her  dower. 

Every  parish  minister  was  enjoined  to  pray  and  preach  on 
the  anniversary  of  the  deliverance  from  the  gimpowder  treason, 
November  5,  1605,  and  on  January  30  "to  manifest  the  detesta- 
tion of  the  barbarous  murder  of  Charles  I.  in  1649,"  ^"d  on 
May  29,  "the  birthday  of  Charles  II.  of  blessed  memory." 

If  any  person  committed  fornication  with  any  single  woman,, 
both  should  be  punished,  either  by  enjoining  marriage  or  by  cor- 
poral punishment,  at  the  discretion  of  the  court. 

162 


HISTORY   OF  NEW   YORK 

Persons  guilty  of  perjury  must  stand  in  the  pillory  three 
several  court  days,  and  render  double  damages  to  any  party 
injured  thereby. 

Apprentices  and  servants  absenting  themselves  from  their 
masters  w^ithout  leave,  must  serve  double  the  time  of  such 
absence. 

Every  town  must  have  a  marking  or  fresh-brand  for  horses. 
No  ox,  cow,  or  such  like  cattle  could  be  killed  for  sale  or  for  pri- 
vate use  without  notice  given  thereof  to  the  town  registrar. 

No  person  could  be  a  common  victualler,  or  keeper  of  a 
cook-shop  or  house  of  entertainment,  without  a  certificate  of 
his  good  behavior  from  the  constable  and  two  overseers  of  the 
parish ;  nor  suffer  any  one  to  drink  excessively  in  their  houses 
after  nine  o'clock  at  night,  under  the  penalty  of  two  shillings 
and  sixpence. 

No  purchase  of  land  from  the  Indians  should  be  valid  with- 
out a  license  from  the  governor,  and  the  purchaser  must  bring 
the  sachem  or  right  owner  before  him  to  confess  satisfaction. 
No  one  was  permitted  to  sell,  give,  or  barter,  directly  or  indi- 
rectly, any  gun  powder,  bullet,  shot,  or  any  vessel  of  burden, 
or  row-boat  (canoe  excepted),  with  any  Indian,  without  per- 
mission of  the  governor,  under  his  hand  and  seal ;  nor  sell, 
truck,  barter,  give  or  deliver  any  strong  liquor  to  an  Indian, 
under  penalty  of  forty  shillings  for  one  pint,  and  in  proportion 
for  any  greater  or  lesser  quantity;  except  in  case  of  sudden 
extremity,  and  then  not  exceeding  two  drams. 

At  Hempstead,  neither  New  York,  Esopus,  Albany,  Sche- 
nectady or  other  Dutch  towns  were  represented.  This  arrange- 
ment for  the  composition  of  the  convention  indicated  clearly 
enough  that  the  laws  which  Nicolls  presented  for  adoption  were 
intended  only  for  the  towns  on  Long  Island  and  in  Westchester, 

163 


LEGAL  AND  JUDICIAL 

where  the  English  population  was  predominant.  Undoubtedly 
the  code  was  designed  for  the  ultimate  government  of  the  entire 
province,  but  that  it  would  be  impossible  immediately  to  bring 
all  its  provisions  into  effect  among  a  people  of  such  widely 
divergent  character  as  the  English  and  Dutch  who  together  con- 
stituted the  bulk  of  population  in  the  colony,  was  recognized  by 
the  judicious  and  far-sighted  governor.  For  nearly  half  a  cen- 
tury the  Dutch  of  New  Netherland  had  lived  under  municipal 
and  judicial  institutions  derived  from  their  mother  country,  and 
these  were  decidedly  different  from  those  to  which  the  English 
were  habituated.  The  population  of  New  Amsterdam  and  of 
the  valley  of  the  Hudson  was  still  mostly  Dutch,  although  there 
had  begun  an  infusion  of  other  nationalities.  For  the  most 
part,  few  of  these  people  were  in  any  wise  familiar  with  English 
customs ;  as  a  matter  of  fact,  they  could  not  even  understand  or 
converse  in  the  English  language.  Therefore,  it  was  wholly 
impracticable  to  consider  at  the  moment  any  abrupt  substitution 
of  courts  and  leg^l  procedure  of  English  character  in  place  of 
those  which  had  been  instituted  by  the  Dutch.  With  this  divided 
people  to  rule,  the  task  before  Nicolls  was  indeed  one  of  tre- 
mendous difficulties.  A  wise  reserve  led  him  to  refrain  from 
interference  with  the  Dutch  administration  which  he  found  in 
efficient  operation,  and  to  permit  the  authorites  of  the  Dutch 
towns,  such  as  Beverwyck,  Rensselaerswyck,  and  Esopus  on  the 
upper  Hudson,  and  New  Amsterdam  and  the  purely  Dutch  com- 
munities in  what  afterward  became  Kings  county,  to  administer 
their  affairs  and  to  distribute  justice  in  their  own  ways. 

So  it  was  that  for  a  considerable  period  the  colony  exhib- 
ited the  anomaly  of  working  under  two  legal  systems,  the  Dutch 
continuing  to  follow  the  forms  to  which  they  were  attached 
through  inheritance  from  the  fatherland,  and  through  their  own 

164 


HISTORY  OF  NEW  YORK 

local  practices  of  nearly  a  half  century.  As  the  historian  of  the 
New  York  court  of  common  pleas,  James  Wilton  Brooks,  has 
said,  the  Roman-Dutch  system  of  law  which  had  been  brought 
from  Netherland  to  America  by  the  Dutch  pioneers  was  "a 
kind  of  irregular  mosaic";  but  the  same  authority  considers 
that  "on  the  whole  it  was  infinitely  superior  to  the  more  tech- 
nical and  artificial  system"  to  which  the  English  had  been 
accustomed,  and  which  Governor  Nicolls  now  started  to  impose 
upon  the  colony.  Upon  the  civil  side,  it  is  doubtful  if  the  Dutch 
law  was  much  if  at  all  improved  upon  by  the  English  substi- 
tution. On  the  other  hand,  in  the  treatment  of  criminal  cases 
the  English  practices  were  surely  better,  although  it  was  long 
before  the  people  of  New  Amsterdam,  transformed  into  New 
Yorkers,  became  agreeably  disposed  to  the  English  custom  of 
trial  by  jury ;  they  preferred  and  tenaciously  clung  to  their 
own  methods  of  settlement  by  arbitration  or  by  the  decision  of 
judges. 

Many  of  the  Dutch  practices  continued  to  adhere  with  a 
persistency  that  fully  demonstrated  their  usefulness,  their 
righteousness.  In  fact,  some  of  them  were,  in  the  course  of 
time,  permanently  absorbed  as  a  part  of  the  English  system. 
Nicolls  carefully  refrained  from  interfering  with  land  owner- 
ship as  much  as  possible,  and  his  successors  generally  followed 
his  example.  Laws  pertaining  to  property  held  under  the  Dutch 
land  patents  were  permitted  to  stand  as  they  were,  and,  in  the 
course  of  time,  many  of  these  became  part  of  the  established 
laws  of  the  province  and  the  state.  Primogeniture,  an  English 
custom  particularly  distinguished  from  that  of  Holland,  made  no 
headway  with  the  New  Yorkers,  who  rigidly  held  to  the  Dutch 
customs  in  respect  to  inheritance.  Other  traces  of  the  Dutch 
legal  and  municipal  systems  are  found  in  the  laws  of  New  York 

165 


LEGAL  AND  JUDICIAL 

of  later  periods.  Among  these  are  the  Dutch  methods  of  mak- 
ing wills  by  oral  declaration  before  a  notary,  or  by  written 
instructions  put  in  his  keeping;  the  restricted  rights  of  suffrage, 
which  beginning  with  the  time  of  Stuyvesant  lasted  for  more 
than  a  half  century  and  left  a  permanent  influence ;  the  modern 
district  attorney,  who  is  clearly  the  schout  of  the  Dutch  period ; 
the  practice  of  raising  money  for  public  purposes  by  excise  tax, 
which  was  imposed  upon  the  colony  by  the  first  Dutch  gover- 
nors; the  practice  of  laying  special  assessments  to  provide  for 
local  improvements ;  and  other  instances  showing  the  influence 
of  the  Dutch  mind  and  Dutch  practices,  upon  the  subsequent  law 
and  practices  of  the  colony  and  state  might  be  citedJ 

Strange  to  say,  more  difficulty  was  found  in  bringing  the 
towns  which  had  been  established  by  the  English  from  New  Eng- 
land into  subjection.  These  included  towns  of  mixed  population, 
such  as  Newtown,  Flushing,  Hempstead,  New  Utrecht,  Jamaica, 
Westchester,  Eastchester,  and  also  the  exclusively  English  towns 
in  the  eastern  part  of  Long  Island  which  had  been  settled  under 
the  jurisdiction  of  Connecticut  or  of  the  New  Haven  colony. 
The  inhabitants  of  these  towns  had  joined  a  military  campaign 
for  the  subjugation  of  New  Amsterdam  when  Colonel  Nicolls 
arrived  from  England,  but  they  were  still  insistent  in  retaining 
their  connection  with  Connecticut  for  the  particular  reason  that 
they  were  in  complete  sympathy  with  the  religion  and  system 
of  government  of  that  colony. 

Admirable  as  they  were  in  most  respects,  the  Duke's  Laws 
were  far  from  meeting  the  approval  of  the  English  speaking 
inhabitants  for  whom  they  had  been  especially  devised.  In  the 
very  beginning,  criticism  of  them  was  outspoken,  the  principal 


7.    "History  of  New  York  in  the  Eighteenth  Century",  by  Mrs.  Schuy- 
ler Van  Rensselaer,  vol.  II,  p.  154. 

166 


HISTORY  OF  NEfV  YORK 

opposition  to  them  being  based  upon  the  ground  that  they  had 
been  imposed  upon  the  people  without  popular  consent.  Thus 
began  another  contention  for  popular  government  in  the  colony, 
although  this  time  it  was  the  English  and  not  the  Dutch,  as  had 
been  the  case  under  Keift  and  Stuyvesant,  who  were  the  com- 
plainants and  agitators.  The  issue  thus  drawn  had  much  to  do 
with  the  final  moulding  of  the  province  into  an  English  com- 
monalty. Vigorous  protest  was  made  against  the  action  of  the 
government  in  dictating  these  laws,  and  many  of  the  delegates 
to  Hempstead  found  themselves  in  decided  disfavor  with  their 
townsmen  when  they  returned  to  their  homes  after  the  close  of 
the  convention.  So  widely  and  strongly  did  this  spirit  manifest 
itself  that  the  governor  felt  compelled  to  recognize  it  and  to 
take  action  thereon.  Accordingly,  at  the  session  of  the  court  of 
assize  in  Fort  James,  in  October,  1666,  he  caused  a  resolution  to 
be  adopted  and  promulgated,  "that  whoever  thereafter  shall  in 
any  way  detract  or  speak  against  the  deputies  signing  the  address 
to  His  Royal  Highness  at  the  general  meeting  at  Hempstead, 
should  be  presented  to  the  next  Court  of  Sessions,  and  if  the 
justices  see  cause,  they  shall  then  be  bound  over  to  the  Assizes 
to  answer  for  the  slander  upon  plaint  or  information." 

Aside  also  from  this  unpopularity  on  the  part  of  the  gov- 
erned, the  code,  as  finally  shaped  and  imposed  upon  the  colony, 
was  far  from  being  adequate  and  satisfactory  for  the  purpose 
for  which  it  was  devised.  At  the  first  sitting  of  the  newly 
formed  court  of  assizes,  in  October,  following  the  convention, 
more  than  one  hundred  amendments  were  made  to  it,  and  in  due 
course  these  were  confirmed  by  the  Duke  of  York.  Other 
additions  and  alterations  were  made  from  time  to  time,  and  with 
these  changes  the  colony  was  governed  under  the  provisions  of 

167 


LEGALAND  JUDICIAL 

the  code  and  according  to  its  terms  until  the  first  provincial 
assembly  was  convened  by  Gk)vernor  Dongan  in  1683. 

Long  Island,  Staten  Island  and  Westchester  were  now  set 
apart  as  Yorkshire,  and  the  district  was  divided  into  the  East 
Riding,  the  West  Riding,  and  the  North  Riding,  after  the  Eng- 
lish political  manner.  The  East  Riding  included  the  towns  of 
Suffolk;  the  West  Riding  included  Staten  Island,  and  New- 
town and  Kings  county,  on  Long  Island ;  the  North  Riding 
included  the  towns  of  Westchester,  and  all  of  Queens  county 
except  Newtown.  The  governor  and  council  appointed  William 
Wells  of  Southold,  the  high  sheriff  of  Yorkshire,  and  in  each 
riding  a  deputy  sheriff  and  justice  of  the  peace  were  named. 
The  high  sheriff  and  the  deputies  were  appointed  annually,  but 
the  justices  continued  in  office  at  the  pleasure  of  the  governor. 
In  1666  the  office  of  deputy  sheriff  was  abolished,  but  that 
of  high  sheriff  continued  until  the  time  of  the  Dongan  assem- 
bly in  1683.  John  Underbill  was  appointed  high  constable  and 
under  sheriff  of  the  North  Riding,  and  he  was  also  surveyor 
general ;  Daniel  Denton,  of  Jamaica,  John  Hicks,  of  Hemp- 
stead, Jonas  Wood,  of  Huntington,  and  James  Hubbard,  of 
Gravesend,  were  among  the  justices  of  the  peace. 

As  has  been  already  seen,  aside  from  certain  specific  res- 
ervations, the  royal  patent  gave  to  the  Duke  of  York, 
through  his  agents  and  deputies,  full  and  absolute  power 
and  authority  to  govern  the  inhabitants  according  to 
his  own  judgment.  Co-relative  was  the  power  to  fix 
all  manners  of  orders,  laws  and  other  forms  of  govern- 
ment, and  to  exercise  martial  law  when  necessary.  Ac- 
cording to  the  provisions  of  this  patent,  the  inhabitants  of  the 
province  had  no  rights  whatsoever  in  legislation,  the  entire  legis- 
lative and  judicial  authority  being  vested  in  the  Duke  of  York, 

168 


HISTORY  OF  N  EfV  YORK 

as  proprietor,  or  in  those  whom  he  might  appoint  as  his 
agents. 

By  the  commission  issued  to  Colonel  Nicolls,  all  the  powers 
granted  in  this  patent  were  assigned  to  the  new  governor  to 
perform  and  execute.  This  in  effect  was  a  declaration  that 
legislation  for  the  province  should  be  by  ordinance  wholly,  and 
not  at  all  by  statute.  When  the  royal  commissioners,  Nicolls, 
Cartwright,  and  Carr,  issued  their  proclamation  from  New 
Utrecht  Bay  upon  their  arrival  in  the  harbor  before  New  York, 
they  announced  that  all  who  should  submit  to  the  government  of 
his  English  majesty  should  have  the  privileges  enjoyed  by  his 
majesty's  English  subjects.  Naturally  this  was  construed  as 
granting  to  the  inhabitants  of  the  colony  the  right  of  participat- 
ing in  the  making  of  the  laws  for  their  own  government,  a 
privilege  already  enjoyed  by  the  people  of  New  England,  Mary- 
land and  Virginia.  The  difference  between  this  announcement 
and  the  intentions  of  the  King  and  the  Duke,  as  set  forth  in  the 
patent,  and  in  the  commission  and  instructions  issued  to  Nicolls, 
became  the  cause  of  decided  disagreement  between  the  colonists 
and  their  successive  governors,  a  disagreement  which  extended 
over  nearly  a  quarter  of  a  century,  and  was  marked  by  animated 
and  often  acrimonious  discussion  until  finally  the  colonists  suc- 
ceeded in  winning  the  right  of  home  legislation. 

In  October,  1669,  during  the  administration  of  Lovelace,  the 
English  towns  of  Hempstead,  Jamaica,  Oyster  Bay,  Flushing, 
Newtown,  Gravesend,  Westchester  and  Eastchester,  petitioned 
for  redress  of  grievances,  and  asked  for  an  assembly  of  dele- 
gates to  advise  about  and  approve  laws  "with  ye  Governor  and 
his  Council  as  may  be  for  ye  good  and  benefit  of  ye  common 
wealth."  In  their  petition  they  laid  particular  emphasis  upon  the 
fact  that  the  people  were  still  excluded  from  any  participation 

169 


LEGAL  AND  JUDICIAL 

in  legislation,  the  right  to  which  they  asserted  had  been  promised 
them  by  the  terms  of  the  commissioners'  proclamation.  For 
answer,  they  were  told  that  "it  doth  not  appear  that  Col.  NicoUs 
made  any  such  promise,"  and,  moreover,  the  governor's  instruc- 
tions forbade  his  making  any  alterations  in  "ye  Lawes  of  ye 
government  settled  before  his  arrival."  This  continued  ignor- 
ing of  the  terms  of  the  proclamation,  as  it  seemed  to  the  protes- 
tants,  bore  less  heavily  upon  the  non-English  inhabitants  than 
it  did  upon  those  of  English  origin.  By  the  articles  of  capitula- 
tion it  was  expressly  agreed  that  the  Dutch  should  enjoy  their 
own  customs,  and  that  their  municipal  affairs  and  legal  methods 
should  continue  as  before.  It  does  not  appear  that  these  stipu- 
lations were  ever  disregarded  or  violated,  and  in  these  particu- 
lars the  statu  quo  practically  continued  until  the  final  ceding  of 
the  province  by  Holland  to  England  under  the  treaty  of  West- 
minster,  in  February,    1674. 

Thus  fully  established  in  the  control  of  the  territory  of  his 
royal  master,  and  with  a  new  English  code  of  laws  set  up,  Gov- 
ernor Nicolls  was  now  prepared  to  go  further  in  measures  for 
the  complete  reversion  of  the  colony  from  Dutch  to  English 
rule.  Nevertheless  he  moved  slowly,  and,  as  the  result  ultimately 
demonstrated,  he  acted  with  a  very  wise  and  judicial  discrimina- 
tion. At  all  times  he  exercised  his  authority  with  such  rare 
good  judgment  that  the  transformation  of  the  Dutch  into  Eng- 
lish communities  was  so  gradual  and  so  smooth  that  it  was 
scarcely  noticeable.  No  opportunity  was  neglected  to  show  the 
inhabitants  of  the  city  and  colony  that  the  conquest  was  a  peace- 
able one.  His  whole  aim  seemed  to  be  to  make  the  necessary 
changes  in  the  government  with  the  least  possible  friction  with 
the  old  colonists,  and  in  such  a  way  that  they  should  all,  Hol- 

170 


HISTORY  OF  N EfV  YORK 

landers  and  Englishmen  alike,  be  favorably  disposed  to  the  new 
control. 

It  was  not  until  June  of  the  following  year,  1665,  that 
he  took  the  first  step  distinctly  to  alter  the  form  of  the  municipal 
government  of  New  York.  By  a  proclamation  dated  the  twelfth 
of  that  month  he  announced  that  the  time  had  arrived  when  he 
considered  it  necessary  to  "revoke  and  discharge  the  flforms  and 
Ceremony  of  Government  of  this  his  Majesties  towne  of  New 
Yorke  under  the  name  or  names,  style  or  styles  of  Schout,  Burgo- 
masters &  schepens."  Therefore  he  discharged  these  officials 
and  then  ordained  that 

"For  the  future  administracon  of  Justice  by  the  Lawes  established  in 
these  the  Territorycs  of  his  Royall  Highnesse  wherein  the  welfare  of  all 
the  inhabitants  and  the  Preservacon  of  all  their  due  Rights  and  Privileges 
Granted  by  the  Articles  of  this  towne  upon  surrender  under  his  Majesties 
Obedience  are  concluded ;  &  do  further  declare  That  by  a  particular  Com- 
mission, such  persons  shall  be  authorized  to  putt  the  lawes  in  Execucon, 
in  whose  abilityes,  prudence  &  good  afifection  to  his  Majesties  Service  and 
ye  Peace  and  happiness  of  this  Government  I  have  especial  reason  to  put 
Confidence,  which  persons  so  constituted  and  appointed,  shall  bee  knowne 
and  called  by  the  Name  &  Style  of  Mayor  Alderman  and  Sheriffe,  accord- 
ing to  the  Custome  of  England  in  other  his  Majesties  Corporacons.'" 

On  the  same  day  he  issued  an  ordinance 

"That  the  inhabitants  upon  Manhattan  Island  are  and  shall  be  forever 
counted,  nominated  and  Established  as  one  Body  Politique  &  Corporate 
under  the  Governmt  of  the  Mayor,  Alderman  and  Sheriffe." 

t 
Thomas  Willett  was  appointed  to  be  mayor;    Thomas  Del- 
avail,  OlofT  Stevensen  Van  Cortlandt,  Johannes  Van  Brugh,  Cor- 
nelia Van  Ruyven  and  John  Lawrence  (or  Laurens)  were  named 


8.  "Documentary  History  of  the  State  of  New  York,"  by  E.  B. 
O'Callaghan,  M.  D.,  LL.D.,  vol.  I,  p.  389.  "The  Colonial  Laws  of  New 
York",  vol.  I,  p.  100. 

171 


LEGAL  AND  JUDICIAL 

as  aldermen ;  and  Allard  Anthony,  who  had  been  the  schout  in 
the  last  years  of  Stuyvesant's  rule,  was  appointed  sheriff.'  To 
the  mayor  and  aldermen,  or  any  four  of  them,  full  power  and 
authority  were  given  to  rule  and  govern  "according  to  the  gen- 
eral laws  of  the  government  and  such  peculiar  laws  as  are  or  shall 
be  found  convenient  and  necessary  for  the  good  and  welfare 
of  the  corporation" ;  and  they  also  had  power  to  appoint 
officers  for  the  orderly  execution  of  justice. 

On  June  15,  three  days  after  receiving  this  commission,  the 
mayor  and  aldermen  met  at  the  Stadt  Huys  and  organized  a 
court.  This  became  the  celebrated  mayor's  court  of  New  York 
city,  which  continued  under  that  name  for  one  hundred  and  fifty- 
six  years,  when  its  jurisdictions  were  transferred  to  other  tri- 
bunals. The  mayor's  court  constituted  the  court  of  sessions  for 
the  city  in  the  same  manner  as  the  justices  of  the  peace  of  the 
country  towns  constituted  the  sessions  courts  of  the  counties.  At 
their  first  meeting  the  members  of  the  mayor's  court  chose  as 
their  secretary  Johannes  Nevius,  who  was  the  former  secretary 
of  the  court  of  burgomasters  and  schcpens.  On  June  27  the 
court  held  its  first  meeting  for  the  hearing  and  trial  of  cases.  It 
was  directed  that  the  records  should  be  kept  in  English  and 
Dutch,  and  thus  without  break  the  judicial  administration  of  the 
affairs  of  the  community  went  on  as  before,  the  difference  in 
name  being  almost  the  only  perceptible  change. 

After  Governor  NicoUs  had  succeeded  in  establishing  him- 
self fully  in  the  colony  and  in  adjusting  affairs  as  he  had  been 
directed  by  his  instructions,  he  made  a  report  of  the  condition 
of  affairs  of  New  York,  answering  several  queries  which  had 
been  addressed  to  him  by  the  lords  of  plantations  concerning 
the  condition  of  affairs  in  the  territories  under  his  control.    TwO' 


9.     "Records  of  New  Amsterdam,"  vol.  V,  pp.  248-252. 

172 


HISTORY  OF  NEfF  YORK 

paragraphs  in  this  document  treat  of  the  courts  and  legal  meth- 
ods.    They  are  as  follows  •}" 

"ist.  The  Govcrnour  and  Councell  with  the  Tlisrh  Sheriffc  &  the  Jus- 
tices of  the  Peace  in  the  Court  of  the  General  Assizes  have  the  supreme 
Power  of  making,  altering  and  abolishing  any  Laws  in  this  Government. 
The  County  Sessions  are  held  by  Justices  upon  the  Bench,  Particular  Town 
Courts  by  a  Constable  and  Eight  Overseers,  The  City  Court  of  N.  Yorke 
by  a  Mayor  and  Aldermen.     All  causes  tried  by  Juries. 

"7.  All  causes  are  tried  by  Juries,  no  Lawes  contrary  to  the  Lawes 
of  England.  Souldyers  only  are  tryable  by  a  Court  Marshall,  and  none 
others  except  in  cases  of  sudden  invasion,  mutiny  or  Rebellion,  as  his 
Mat'es  Lieutenants  in  any  of  his  Countries  of  England  mya  or  ought  to 
exercise." 

One  impotrant  innovation,  and  only  one,  was  made  in  the 
practice  as  it  had  existed  before ;  that  was  the  introduction  of 
trial  by  jury,  which  was  proposed  at  the  first  meeting  of  the 
mayor's  court  of  New  Amsterdam,  and  was  probably  brought 
about  by  the  influence  exercised  by  Mayor  Thomas  Willett,  with 
his  particular  knowledge  of  English  legal  usages.  A  jury  of 
twelve  was  empannelled  to  try  civil  causes,  and  it  was  voted 
that  trials  by  jury  should  be  on  the  first  Tuesday  of  every  month. 
Jury  trial,  however,  did  not  prove  popular  with  the  Dutch,  most 
litigants  preferring  to  have  their  causes  disposed  of  by  judges  as 
had  been  done  before,  and  years  elapsed  before  it  was  fully 
accepted  by  them.  It  was  sooner  and  more  generally  adopted 
by  the  English."^^  The  first  case  of  trial  by  jury  in  this  court 
w'as  on  June  27,  1665,  being  the  suit  of  Francis  Doughty  against 
John  Hinxman  and  Kenelm  Winslow ;  this  was  an  action  and 
counter  action  for  settlement  of  an  account.  The  record  of  the 
case  is  as  follows : 


10.  "Documents    Relative    to    the    Colonial    History   of   the    State    of 
New  York,"  by  E.  B.  O'Callaghan,  M.  D.,  LL.D.,  vol.  IH,  p.  188. 

11.  "Records  of  New  Amsterdam,"  vol.  V. 


LEGAL  AND  JUDICIAL 

"ffrancis  Douthy,  pltf.  vs.  John  Hinxman  and  Knollum  Winslow,  defts. 
The  Court  doth  Order  that  the  Partyes  shall  deliver  in  their  Evidence  to 
the  following  Juries  to  witt  Caleb  Burton,  Isaacq  Bedloe,  Christ,  hoog- 
land,  Balthw  de  Haery,  Wm  dornel,  James  Bullaine,  John  Gurland,  John 
Browne,  Charles  Bridges,  John  damrel,  Thos.  Carvet,  Saml  Edsal. 

"The  Juries  doe  Judge  that  the  defenders  shal  pay  the  plaintiv  Soomuch 
as  he  shall  appeare  by  true  accounts  due  unto  him  from  the  S''  defenders, 
besides  the  Costs^  Judgment  &  Nominates  for  the  view  Examine  and 
make  up  the  accounts  betwixt  the  partyes  from  the  tyme  that  the  Bark 
was  Sould  to  M""  Tacher,  til  the  tyme  that  she  was  Returned  againe  to 
the  s'l  Douthy  to  witt  Mr  Jacob  Backer,  M""  Isaacq  Bedloe,  M""  Balthazar 
de  haert  &  Nf  Samuel  Edsal  Ady  ut  Supra. 

"Kncllum  Winslow,  pltf.  vs.  ffrancis  Douty,  deft.  The  Court  does 
order  the  Parties  to  deliver  their  Evidence  to  the  before  standing  juries. 
The  juries  doe  judge  that  the  defend''^  shall  pay  besides  the  damages  of 
the  Court  to  the  Plaintive  the  Somme  of  five  and  twenty  guilders  Wam- 
pum. The  honn^^'e  Court  doe  give  their  Assent  to  the  fores^  Judgement 
Adt  ut  Supra. 

"John  Hinxman,  pltf.  vs.  ffrancis  Douty  deft.  With  Consent  of  both 
Partyes  the  Court  does  Order  that  they  shal  deliver  their  evidence  to  the 
jury.  The  juries  judgment  is,  that  the  deft,  shall  pay  to  the  pltflf.  Soo 
much  as  is  due  to  him  by  Bond  besides  the  Cost  &  damages  of  the  Court. 
The  Honnourable  Court  doe  give  their  assent  to  the  aforesaid  judgement. 
Ady  ut  Supra. 

"ffrancis  Douty,  pltf.  vs.  Kncllum  Winslow,  deft.  In  Action  of  As- 
salt  &  Batterie  the  w*^  The  Court  orders  that  the  parties  shall  deliver  in 
their  Evidence  to  the  foresaid  Juries.  The  Juries  doe  allowe  to  the  Plain- 
tive for  his  fine  thirty  pence  besides  the  damages  of  the  Court.  The  Honble 
Court  doe  give  their  Assent  to  the  abovesaid  allowence.     Ady  ut  Supra." 

On  the  same  court  day  there  was  another  case  in  which 
Kenelm  Winslow  was  the  plaintiflF.  The  matter  in  litigation  does 
not  appear,  but  the  case  was  disposed  of  by  reference  to  the  jury, 
as  those  preceding  it  had  been : 

"Knellum  Winslow,  pit.  vs.  Samuel  Moore,  dcff*.  The  Court  orders 
that  one  either  syde  shall  deliver  in  their  evidence  to  the  aforenamed 
Juries.  The  Juries  doe  allowe  the  pit.  the  Costs  &  damages  off  the  Court 
&  no  Moore.  The  Honn^le  Court  doe  give  their  assent  to  the  aforesd 
Judgement  and  Allowance  off  the  Juries. 

During  the   four  years  that  Governor  Nicolls  reinained  in 

174 


HISTORY  OF  N  EW  YORK 

New  York,  he  accomplished  a  work  far  in  advance  of  anything 
that  had  ever  been  achieved  by  any  of  his  predecessors,  placed 
the  colony  upon  a  sound  foundation,  and  advanced  it  far  along 
the  road  to  its  future  greatness.  He  proved  himself  to  be  a 
remarkable  man  of  affairs,  farsighted  and  statesmanlike,  tactful 
and  generous  in  his  dealings  with  the  people  over  whom  he  had 
been  placed,  but  at  the  same  time  unswerving,  and  determined  in 
whatsoever  he  believed  to  be  for  the  best  interests  of  the  com- 
munity. His  praises  have  been  sounded  by  every  historian  of 
New  York.  What  has  been  said  of  him  by  one  writer  sub- 
stantially voices  the  judgment  of  all  students  of  this  period  of 
New  York  history : 

"In  New  York  his,  tact,  his  good  temper,  and  his  impartiality,  had 
never  failed.  Many  old  matters,  Van  Ruyven  wrote  to  Stuyvesant  in  Hol- 
land, had  been  'ripped  up  and  misinterpreted'  but  the  governor  'wisely 
disregarded  them.'  He  well  knew,  as  he  wrote  to  his  commissaries  in  Al- 
bany when  urging  them  so  to  behave  that  Dutch  and  English  might  'live 
as  brothers',  that  to  pay  heed  to  'strange  news'  and  gossip  'commonly  tends 
to  the  dividing  of  men's  minds.'  With  his  soldiers  he  was  so  strict  that 
they  provoked  only  one  small  riot  on  Manhattan.  When  the  Dutchmen 
at  Esopus  broke  into  open  revolt,  exasperated  by  the  behavior  of  the  gar- 
rison and  the  harshness  of  Captain  Brodhead,  who  failed  to  follow  the 
governor's  good  advice,  NicoUs  did  indeed  banish  the  ringleaders,  but  he 
also  suspended  Brodhead.  His  sympathy  with  the  Dutch  and  his  confidence 
in  their  good  intentions  he  showed  in  acts  as  well  as  in  words,  notably  in 
many  appointments  to  office,  including  the  appointment  of  Van  Ruyven  to 
the  responsible  post  of  collector  of  customs  as  Delavall's  successor.  He  did 
what  he  said  he  wanted  to  do — he  won  the  affections  of  the  people  confided 
in  such  difficult  circumstances  to  his  care ;  yet  in  accomplishing  this  he 
shirked  no  responsibility,  shunned  nothing  that  his  duty  to  the  Duke  or 
his  own  estimate  of  the  needs  of  the  province  demanded,  and  ventured  to 
break  promises  that  had  been  given  before  he  fully  understood  either  local 
conditions  or  his  master's  desires.  In  all  phases  of  his  complicated  work 
he  stood  virtually  alone,  with  few  to  advise  him,  none  to  share  responsibil- 
ity with  him.  Nevertheless,  his  correspondence  shows  that  he  quickly 
learned  to  comprehend  colonial  problems  even  in  their  broader  aspects,  ex- 
cept only  the  supreme  importance  of  the  friendship  »f  the  Iroquois.     In  hi& 

1/5 


LEGAL  AND  JUDICIAL 

official  as  in  his  private  capacitj-,  this  first  English  governor  of  the  Dutch 
province  seems  to  have  been  a  man  in  ten  thousand.  Certainly  among 
those  who  followed  him  in  office,  only  three  or  four  deserved  to  be  com- 
pared with  him  for  ability,  diligence,  or  integrity;  scarcely  one  showed 
so  kindly  a  feeling  for  the  people  he  governed;  and  not  one  continued,  as 
did  Colonel  NicoUs,  to  bear  their  interests  in  mind  and  to  labor  for  their 
good  after  he  left  their  shores."" 

Nicolls  had  not  found  the  position  of  governor  wholly  con- 
genial. Although  he  had  managed  so  discreetly  that  the  people 
were  most  agreeably  disposed  toward  him,  he  was  nevertheless 
well  pleased  when,  after  the  signing  of  the  treaty  of  Breda  by 
which  Holland  released  to  England  all  claim  upon  New  Nether- 
land,  it  was  possible  for  him  to  claim  release  from  his  responsi- 
bilities. His  recall  was  accompanied  with  kind  and  flattering 
words  from  the  king  and  the  king's  ministers,  and  he  could 
leave  New  York  with  the  satisfaction  of  knowing  that  he  had 
succeeded  in  firmly  establishing  English  institutions,  and  in  pro- 
viding for  the  permanency  of  English  rule  in  this  part  of  the 
western  continent. 

As  his  successor.  Colonel  Francis  Lovelace,  of  the  family 
of  Lord  Lovelace  in  Berkshire,  was  appointed,  and  reached  New 
York  before  midsummer  in  1668.  Nicolls  remained  some  time 
to  aid  Lovelace  in  his  new  duties,  and  when  he  finally  left  the 
colony  which  he  had  transferred  into  an  English  body  politic,  he 
carried  with  him  the  general  good  will  of  the  citizens,  who  parted 
from  him  with  expressions  of  respect  and  regret. 

Colonel  Lovelace  brought  to  New  York  a  confirmation  by 
the  Duke  of  York  of  the  code  of  laws  that  had  been  promul- 
gated at  Hempstead ;  among  other  things,  the  instructions 
required  him  "to  make  no  alterations  in  the  laws  of  the  gover- 


12.    "History  of  the  City  of  New  York  In  the  Seventeenth  Century", 
by  Mrs.  Schuyler  Van  Rensselaer,  vol.  II,  p.  64. 

176 


HISTORY  OF  NEW  YORK 

nor  settled  before  his  arrival."  With  him  came  his  two  younger 
brothers,  Thomas  Lovelace  and  Dudley  Lovelace.  His  admin- 
istration of  five  years  was  in  no  way  remarkable.  He  was  not  in 
any  respect  as  strong  an  administrator  as  his  predecessor,  nor 
indeed  did  he  have  to  undertake  the  primary  work  of  foundation 
and  construction,  for  that  had  already  been  done.  Of  a  mild 
and  easy-going  disposition,  he  simply  followed  in  the  way  which 
Nicolls  had  pointed  out,  and,  working  along  those  lines,  he  was 
able  to  accomplish  much  good  in  improving  the  general  condi- 
tion of  the  province  and  the  city.  In  the  beginning  his  council 
consisted  of  four  members,  including  Matthias  Nicolls,  the  pro- 
vincial secretary,  Cornehs  Steenwyck,  mayor  of  the  city  of  New 
York,  and  Thomas  Willett,  who  was  the  first  mayor  of  the  same 
city  in  1665.  Other  members  of  his  council  at  different  times 
were  Thomas  Delavall,  Ralph  Whitfield,  Isaac  Bedloe,  Francis 
Boone,  Cornells  Van  Ruyven,  Captain  John  Manning,  Dudley 
Lovelace,  and  Thomas  Lovelace. 

Few  of  the  public  acts  of  Lovelace  were  historically 
important,  although  matters  troublesome  to  himself  occa- 
sionally came  up.  The  only  really  conspicuous  act  of 
his  administration  was  the  opening  of  the  highway  between  New 
York  and  Harlem  as  part  of  a  post  road  for  securing  better 
communication  between  New  York  and  Boston.  He  also  pur- 
chased from  the  Indians,  in  1670,  Staten  Island,  thus  accom- 
plishing the  removal  of  the  aborigines  further  away  from  the 
metropolis.  Court  proceedings  continued  as  they  had  gone 
on  in  the  preceding  years,  without  much  change.  The  organiza- 
tion of  the  courts  was  not  interfered  with,  and  the  administra- 
tion of  law,  as  may  be  seen  by  the  records,  presented  the  now 
familiar  aspects,  which  had  long  characterized  it.  Regular  practi- 
tioners of  law  had  come  by  this  time,  but,  as  before,  most  of  the 

177 
12 


LEGAL  AND  JUDICIAL 

business  of  the  courts  was  in  civil  affairs,  few  criminal  cases 
coming  before  them.  There  was  a  city  hangman,  but  it  is  not 
clear  that  he  had  much  to  do.  His  name  and  his  memory  have 
been  preserved  in  a  letter  which  was  written  by  Jo.  Clarke, 
"Ffrom  ye  Secretary's  Office  in  ffort  James  the  28th  day  of  Jan- 
uary in  the  evening  1672-3".  This  letter  was  directed  "to  Captn 
Silvester  Salisbury  Governor  of  Fort  Albany."  It  was  written 
in  answer  to  a  letter  of  January  1 1  sending  instructions  in  regard 
to  the  method  of  trying  murderers  of  soldiers,  and  gives  an 
account  of  many  things  that  were  happening  in  Fort  James  at 
that  time.  The  paragraph  in  which  the  hangman  is  mentioned 
read: 

"Lastly  for  our  own  City  News,  lett  this  satisfy;  that  t'other  day  wee 
had  like  to  have  lost  our  Hangman  Ben  Johnson,  for  hee  being  taken  in 
divers  Thefts  and  Robberyes,  convicted  &  found  guilty  scapd  his  neck 
through  want  of  another  Hangman  to  truss  him  up,  soe  that  all  the  punish- 
ment hee  receiv<i  for  his  3  yeares  Roguery  in  thieving  stealing  (which 
was  never  found  out  till  now)  was  only  thirty-nine  stripes  at  the  Whip- 
ping-Post, loss  of  an  car  and  Banishm*." 

One  case  of  capital  punishment  is  found  in  the  records.  On 
September  13,  1666,  a  Dutchwoman,  Engeltie  Hendricks,  was 
brought  before  the  court  on  a  charge  of  infanticide. 

"for  which  abominable  act  the  s**  Engel  Hendrick  merited  to  be  Pun- 
ished others  to  an  Exampel.  Noo  Soo  it  is  that  We  the  Ald'men  of  New 
York  by  vertue  of  a  Commission  doeing  Justice  in  the  name  of  his 
Magesty  the  King  of  England,  Schotland,  france  and  Ireland  &  his  Royal 
Highness  the  Duke  of  York  &ca  &  their  Governi"  the  Right  Honn^le  Col- 
lonel  Richard  Nicolls  doe  Condemme  the  s<i  Engel  Hendricx  as  we  doe  by 
these  Presents  that  she  shal  be  brought  from  this  Place  to  the  Whipping 
post  and  then  &  there  to  Receive  twentie  Slashes  with  Rods  and  then  to 
Remaine  in  Prison  the  time  of  24  houres  and  to  be  brought  out  the 
Townes  Gate."" 


13.  "The  Historical  Magazine,"  ist  series,  February,  i860,  vol.  IV,  p. 
50. 

14.  "Records  of  New  Amsterdam,"  vol.  I,  p.  34. 

178 


HISTORY  OF  NEfV  YORK 

Pending  execution,  the  woman  escaped  from  jail,  but  was 
afterward  apprehended  and  hanged.  In  the  records  of  the  court, 
July  26,  1669,  there  is  a  report  of  the  "Examination  of  Wm 
fisher  whether  he  had  any  conversation  with  Engel  Hendrix 
who  is  lately  put  to  death  for  murdering  her  Child."^  A  negro 
who  was  involved  in  the  woman's  escape  was  apprehended  and 
sentenced  to  serve  as  public  executioner  for  a  period  of  five 
years,  or  to  pay  a  fine. 

Governor  Lovelace's  term  of  service  came  to  an  abrupt  end 
in  August,  1673,  when  the  Dutch  fleet  of  men-of-war  commanded 
by  Admirals  Evertsen  and  Binckes  appeared  in  the  harbor  before 
New  Amsterdam.  Lovelace  was  in  Connecticut,  and  before  he 
could  get  back  to  New  York  the  city  had  surrendered  to  the 
invaders.  Steps  were  promptly  taken  by  the  admirals  to  follow 
up  their  easy  victory  by  reinstating  a  Dutch  government.  The 
city  of  New  York  was  named  New  Orange,  and  the  fort  Willem 
Hendrick.  Albany  was  christened  Willemstadt,  and  its  fort 
became  Fort  Nassau.  Authority  was  exercised  by  a  council  of 
war  consisting  of  the  two  admirals.  Captain  Anthony  Colve,  and 
two  other  captains,  Nicholaes  Boes,  and  A.  F.  Van  Zeyll.  A 
body  of  delegates,  Cornelis  Steenwyck,  Cornelis  Van  Ruyven, 
Johannes  De  Feyster,  Johannes  Van  Brugh,  Martin  Krieger  and 
Nicholas  Bayard,  were  sent  to  confer  with  the  council  of  war 
at  the  fleet  on  behalf  of  the  commonalty.  To  these  delegates 
direction  was  given  "To  convoke  the  commonalty  here  in  the  City 
Hall  as  soon  as  possible,  and  to  cause  them  to  nominate  six  per- 
sons as  burgomasters  and  fifteen  as  schepens  to  wit  from  the 
wealthiest  inhabitants  and  those  only  who  are  of  the  Reformed 
Christian  Religion,  from  whom  the  said  Commanders  and  Coun- 
cil of  War  will  elect  some  as  Magistrates  of  this  City.     This 

15.    "Records  of  New  Amsterdam",  vol.  I,  p.  188. 


LEGAL  AND  JUDICIAL 

was  on  August  12,  and  four  days  later  the  following  were  nom- 
inated for  burgomasters:  Cornells  Steenwyck,  Comelis  Ruyven, 
Johannes  Van  Brugh,  Martin  Krieger,  Egedius  Luyck,  Johannes 
De  Peyster,  and  Nicholas  Bayard.  The  council  of  war  selected 
from  these  nominees :  Johannes  Van  Brugh,  Egedius  Luyck  and 
Johannes  De  Peyster,  to  be  burgomasters  under  the  new  gov- 
ernment. The  citizens  nominated  as  schepens :  Jeronimus 
Ebbingh,  Willem  Beeckman,  Balthazzar  Bayard,  Steven  Van 
Cortlandt,  Rynier  Williamsen,  Jan  Vinge,  Conraet  Ten  Eyck, 
Jacob  Kip,  Gelyn  Verplanck,  Louwerens  Van  der  Spiegel,  Fran- 
cois Rombouts,  Adolf  Peitersen,  Peter  Jacobsen,  and  Peter 
Stantenburgh.  From  this  list  of  nominees  the  council  of  war 
selected  the  following:  Jeronimus  Ebbingh,  Willem  Beeckman, 
Jacob  Kip,  Gelyn  Verplanck  and  Louwerens  Van  Der  Spiegel. 
Antony  de  Milt  was  chosen  to  be  schout}^  With  this  done,  and 
oaths  of  allegiance  administered,  the  transformation  of  New  York 
to  its  former  Dutch  status  was  fully  accomplished. 

The  five  Dutch  towns  of  Long  Island,  Midwout,  Bruekelen, 
Amersfort,  Utrecht,  Boswick,  and  also  Gravesend  and  Staten 
Island,  formally  submitted  to  the  authority  of  the  Dutch  admir- 
als. Jacob  Strycker,  of  Bruekelen,  was  appointed  to  be  schout 
of  these  towns,  and  Francis  de  Bruyn  was  made  secretary,  while 
for  each  town  four  schepens  were  named,  upon  nomination  by 
the  citzens.  For  Staten  Island,  Pieter  Biljou  was  appointed 
schout,  and  two  schepens  were  named.  The  five  English  towns 
at  the  western  end  of  Long  Island,  Flushing,  Jamaica,  Middle- 
burg,  Oyster  Bay  and  Hempstead,  yielded  to  the  Dutch,  and  for 
each   of   these   three   schepens  were   appointed,   while   William 


16.  "Documentary  History  of  the  State  of  New  York,"  by  E.  B. 
O'Callaghan,  M.  D.,  LL.D.,  vol.  I,  p.  390.  "History  of  the  State  of  New 
York,"  by  J.  R.  Brodhead,  vol.  VI,  p.  226;  "Records  of  New  Amsterdam," 
vol.  VI,  p.  397. 

180 


HISTORY  OF  N  EW  YORK 

Lawrence  was  made  schout  and  Carel  Van  Brugg  was  appointed 
secretary.  The  five  towns  of  the  East  Riding,  Southampton, 
Easthampton,  Southold,  Seatucket,  and  Huntington  were  slower 
in  acknowledging  allegiance  to  the  new  comers.  More  even  than 
in  the  time  of  NicoUs  did  they  desire  to  ally  themselves  to  the 
Connecticut  colony,  with  which  they  had  never  ceased  to  have 
intimate  relations,  and  to  whom  in  the  present  emergency  they 
turned  longing  eyes.  Finally,  however,  they  fell  in  with  the 
rest  of  Long  Island,  and  two  schepens  were  appointed  for  each 
of  the  five  towns,  with  Isaac  Arnold  as  schout  and  Henry  Pier- 
son  secretary.  Schepens  were  also  appointed  for  the  towns  of 
New  Jersey,  which  came  under  the  jurisdiction  of  Governor 
Colve,  and  new  courts  of  justice  were  established  in  that  terri- 
tory, as  well  as  in  Delaware. 

Naturally,  the  Dutch  towns  on  the  Hudson  and  in  the  inte- 
rior did  not  at  all  hesitate  in  accepting  the  changed  conditions  of 
authority  in  the  colony.  For  Schenectady,  Jan  Gerritse  Van 
Mark  was  appointed  schout,  and  schepens  were  appointed  for 
Swaenenburg,  Hurley  and  Marbletown.  For  the  town  of  Esopus, 
Isaac  Graevenraet  was  appointed  schout,  and  William  Montagne 
secretary.  For  Willemstadt  and  Rensselaerswyck,  Andrew  Dray- 
er,  who  was  commander  of  Fort  Nassau,  was  appointed  schout, 
and  Johannes  Provoost  secretary  of  the  court.  Four  schepens 
were  appointed  for  Willemstadt  and  three  for  Rensselaerswyck; 
the  schepens  of  Willemstadt  were  Gerrit  Van  Slechtenhorst,  Da- 
vis Schuyler,  Cornelis  Van  Dyck,  and  Peter  Bazardes." 

Their  work  accomplished,  the  Dutch  admirals,  Evertsen  and 
Binckes,  sailed  for  Holland  on  September  27,  1673,  but  they 
left  their  associate,  Captain  Colve,  to  be  the  governor  general 
of  the  recovered  province.    In  place  of  Matthias  Nicols,  Nicholas 


17.    "New  Nethcrland  Register,"  p.  71. 

181 


LEGAL  AND  JUDICIAL 

Bayard  had  been  appointed  secretary  of  New  Orange  and  regis- 
ter of  New  Netherland.  Cornelius  Steenwyck  was  appointed 
councillor,  "to  assist  in  the  direction  of  all  cases  relative  to  jus- 
tice and  police,  and  further  in  all  such  military  concerns  both  by 
water  and  by  land,  in  which  the  governor  shall  deem  proper  to 
ask  his  advice  and  assistance  to  administer  justice  both  in  civil 
and  criminal  cases."^* 

Captain  Willem  Knyffe  was  the  schout  fiscal  and  public 
prosecutor, 

"to  take  care  that  the  sovereign  jurisdiction  and  domain  of  their  High 
Mightinesses  and  his  Serene  Highness  over  this  Province  be  duly  main- 
tained without  suffering  anything  to  be  directly  or  indirectly  attempted  to 
the  prejudice  or  injury  thereof;  also  to  apprehend  and  prosecute  all  male- 
factors, whether  criminal,  political  or  military  who  have  committed  any- 
thing against  the  Province  or  its  supreme  magistracy;  likewise  to  pay 
particular  attention  that  all  scandals,  irregularities,  and  ungodliness  be 
driven  from  the  Province;  moreover  that  good  laws  and  justice  be  admin- 
istrated without  respect  of  persons  and  in  all  courts  of  justice  within 
this  province,  according  to  the  laudable  customs,  laws  and  ordinances  of 
our  Fatherland,  stern  to  execute  all  placards  and  ordinances,  also  all  sen- 
tences and  judgments  of  the  supreme  magistracy,  according  to  their  tenor 
and  to  prosecute  all  law  breakers  as  they  deserve."" 

Cornelis  Van  Ruyven  was  soon  added  to  the  council,  which 
as  thus  constituted  was  the  superior  court  of  the  provmce.  The 
city  magistrates  were  also  consulted  when  affairs  of  importance 
came  up.  Administration  of  law  in  the  towns  was  intrusted  pri- 
marily to  district  courts  similar  to  the  English  courts  of  session. 
Two  courts  on  the  Island  of  Manhattan,  one  in  the  Bowery 
village  just  north  of  the  city  proper  on  the  east  side  and  the 
other  in  Harlem,  were  subordinate  to  the  city  court. 


i8.     "Documents   Relative   to    the    Colonial    History   of   New    York," 
vol.  II,  p.  6ii. 

19.     "Documents   Relative   to   the   Colonial    History   of   the   State   of 
New  York,"  by  E.  B.  O'Callaghan,  M.  D.,  LL.D..  vol.  II,  p.  669. 

182 


HISTORY  OF  NEfV  YORK 

Instructions  issued  by  the  governor  to  the  sellouts  and  mag- 
istrates of  towns  outside  of  New  Orange,  bearing  date  of  Octo- 
ber I,  1673,  show  the  jurisdiction  and  powers  of  the  local  tri- 
bunals. It  was  directed  that  in  all  cases  relating  to  police,  secu- 
rity and  peace  of  the  inhabitants,  also  to  justice  between  man 
and  man,  should  be  finally  determined  by  the  magistrates,  to 
the  amount  of  and  under  sixty  florins,  beavers,  without  appeal. 
If  the  sum  was  in  excess  of  that  amount,  the  aggrieved  party 
might  appeal  to  a  meeting  of  the  schout  and  councillors  dele- 
gated from  the  villages  subject  to  the  jurisdiction  of  the  schout. 
For  this  purpose  one  person  was  to  be  annually  appointed  from 
each  village ;  and  all  were  directed  to  assemble  in  a  convenient 
place  to  be  selected  by  them,  and  power  was  given  to  them  to 
pronounce  final  judgment  to  the  amount  of  two  hundred  and 
fifty  florins,  beavers.  But  in  all  cases  exceeding  that  sum,  either 
party  should  be  entitled  to  an  appeal  to  the  governor  general  and 
council.  It  was  ordered  that  in  case  of  an  inequality  of  votes  the 
minority  should  submit  to  the  majority;  but  those  who  were 
of  a  contrary  opinion  should  have  that  opinion  recorded  in  the 
minutes,  but  should  not  divulge  it  without  the  meeting  under 
pain  of  arbitrary  correction.  All  criminal  oflfences  were  to  be 
referred  to  the  governor  general  and  council,  but  smaller 
offences,  such  as  quarrels,  abusive  words,  threats,  fisticuffs  and 
such  like,  were  left  to  the  jurisdiction  of  the  magistrates  of  each 
particular  village.  The  magistrates  were  also  empowerd  to  make 
ordinances  for  the  government  of  their  districts,  relating  to  petty 
offences,  provided  they  were  conformable  to  the  law  of  the 
Fatherland,  the  same  to  be  first  approved  by  the  governor  gen- 
eral and  council. 

Governor  Colve's  control  was  essentially  of  military  char- 
acter.    The  circumstances  under  which  he  came  into  possession 

183 


LEGAL  AND  JUDICIAL 

of  the  colony  were  such  that  it  became  necessary  for  him  to  exert 
his  authority  strongly,  and  to  enforce  military  provisions  against 
possible  reprisal  by  the  English  whom  he  had  deposed.  He 
became  therefore  somewhat  unpopular,  but  it  would  appear  that 
he  conducted  himself  as  discreetly  as  could  be  expected  under  the 
circumstances.  Aside  from  the  setting  aside  of  the  English  courts 
and  English  legal  practices,  and  substituting  for  them  the  former 
Dutch  methods  and  the  former  Dutch  officials,  his  rule  made  but 
little  impression  upon  the  judicial  history  of  the  colony.  His 
provisional  instructions  for  the  schout,  burgomasters  and  schepens 
of  the  city  of  New  Orange  was  about  as  far  as  he  went  in  rela- 
tion to  legal  matters.  This  ordinance,  which  was  issued  on 
January  15,  1674,  has  been  generally  known  as  the  Colve  Char- 
ter, although  it  was  in  no  sense  a  city  charter ;  it  defined  the  duties 
of  the  magistrates,  and  the  functions  of  their  court.  It  embraced 
some  new  features  relating  to  local  government,  particularly  in 
giving  increased  power  in  criminal  cases  to  the  board  of  burgo- 
masters and  schepens,  and  in  providing  that  the  schout  fiscal 
should  preside  at  the  meetings  of  the  board  in  the  absence  of  the 
governor,  instead  of  permitting  the  burgomasters  and  schepens 
to  elect  one  of  their  own  number  for  presiding  officer.  This 
charter  or  ordinance  is  as  follows : 


"ist.  The  Schout  and  Magistrates,  each  in  his  quality  shall  take  care 
that  the  Reformed  Christian  Religion  conformable  to  the  Synod  of  Drod- 
recht  shall  be  maintained,  without  suffering  other  Sects  attempting  anything 
contrary  thereto. 

"2.  The  Schout  shall  be  present  at  all  meetings  and  preside  there  un- 
less the  Honble.  Heer  Governour  or  some  person  appointed  by  him  be 
present  who  then  shall  preside,  when  the  Schout  shall  rank  next  below  the 
youngest  acting  Burgomaster.  But  whensoever  the  Schout  acts  as  Prosecu- 
tor on  behalf  of  Justice  or  otherwise,  having  made  his  complaint,  he  shall 
then  rise  up  and  absent  himself  from  the  Bench  during  the  deciding  of  the 
case. 

184 


HISTORY  OF  NEW  YORK 

"3.  All  matters  appertaining  to  the  Police,  Security,  and  Peace  of  the 
Inhabitants,  also  to  Justice  between  man  and  man,  shall  be  determined  by 
final  Judgment  by  the  Schout,  Burgomasters  and  Schcpens  aforesaid  to  the 
amount  of  Fifty  Beavers  and  under,  but  in  all  cases  exceeding  that  sum, 
each  one  shall  be  at  liberty  to  appeal  to  the  Hecr  Governour,  &  Council 
here. 

"4.  All  Criminal  offences  which  shall  be  committed  within  this  City 
and  Jurisdiction  thereof  shall  be  amenable  to  the  Judicature  of  said 
Sellout,  Burgomasters  and  Sche[>ens  who  shall  have  power  to  judge  and 
sentence  the  same  even  unto  Death  inclusive ;  provided  and  on  condition, 
that  no  sentence  of  corporal  punishment  shall  be  executed  unless  the  ap- 
proval of  the  Heer  Governour  General  and  Council  shall  be  first  sought 
and  obtained  therefor. 

"5.  The  Court  shall  be  convoked  by  the  President  Burgomaster,  who 
shall,  the  night  before,  make  the  same  known  to  Capt.  Willem  Knyff  (who 
is  hereby  provisionally  qualified  and  authorized  to  be  present  and  preside 
over  the  Court  in  the  name  and  on  the  behalf  of  the  Rr  Governour), 
and  so  forth  to  the  remaining  Schout,  Burgomasters  and  Schepens. 

"6.  All  motions  shall  be  put  by  the  first  Burgomaster,  whose  proposi- 
tion being  made  and  submitted  for  consideration,  the  Commissioner  there 
presiding  in  the  name  of  the  H""  Governour,  shall  first  vote  there,  and  so 
afterwards  the  remaining  Magistrates  each  according  to  his  rank;  and  the 
votes  being  collected,  it  shall  then  be  concluded  according  to  plurality; 
but  if  it  happen  that  the  votes  are  equal,  the  President  shall  then  have 
power  to  decide  by  his  vote,  in  which  case  those  of  the  contrary  opinion 
as  well  as  those  of  the  minority  may  Register  their  opinions  on  the  Min- 
utes, but  not  publish  the  same  in  any  manner  out  of  the  Court  on  pain  of 
arbitrary  Correction. 

"7.  The  Burgomasters  shall  change  Rank  every  year,  wherein  the 
eldest  shall  first  occupy  the  place  of  President  and  the  next  shall  follow 
him;  but  during  this  current  Year  the  change  shall  take  place  every 
4  months,  since  three  Burgomasters  are  appointed  for  this  year. 

"8.  The  Schout,  Burgomaster  and  Schepens  shall  hold  their  Session 
and  Court  Meetings  as  often  as  the  same  shall  be  necessary,  on  condition 
of  previously  appointing  regular  days  therefor. 

"9.  The  Schout,  Burgomasters  and  Schepens  shall  have  power  to  en- 
act, and  with  the  approbation  of  the  Hr  Governour  to  publish  and  affix 
some  Statutes,  Ordinances  and  Placards  for  the  Peace,  Quiet  and  Advan- 
tage of  this  City  and  the  inhabitants  thereof  within  their  district,  pro- 
vided that  the  same  do  not  in  any  wise  conflict,  but  agree  as  much  as  pos- 
sible, with  the  Laws  and  Statutes  of  our  Fatherland. 

"10.  Said  Schout,  Burgomasters  and  Schepens  shall  be  bound  rigidly 
to  observe  and  cause  to  be  observed  the  Placards  and  Ordinances  of  the 

185 


LEGAL  AN D  JUDICIAL 

Chief  Magistracy,  and  not  to  suffer  any  thing  to  be  done  contrary  thereto, 
but  proceed  against  the  Contraveners  according  to  the  tenor  thereof;  and 
further  promptly  execute  such  orders  as  the  Heer  Governour  General  shall 
send  them  from  time  to  time. 

"ii.  The  Schout,  Burgomasters  &  Schepens  shall  be  also  bound  to  ac- 
knowledge their  High  Mightinesses  the  Lords,  States  General  of  the 
United  Netherlands  and  His  Serene  Highness  the  Lord  Prince  of  Orange 
as  their  Sovereign  Rulers,  and  to  maintain  their  High  Jurisdiction,  Right 
and  Domain  in  this  Country. 

"i2.  The  election  of  all  inferior  officers  and  servants  in  the  employ 
of  said  Schout,  Burgomasters  and  Schepens  shall,  with  the  sole  exception 
of  the  Secretary,  be  made  and  confirmed  by  themselves. 

"13.  The  Schout  shall  execute  all  judgments  of  the  Burgomasters  and 
Schepens,  without  relaxing  any,  unless  with  the  advice  of  the  Court,  also 
take  good  care  that  the  jurisdiction  under  his  authority  shall  be  cleansed 
of  all  Vagabonds,  Whorehouses,  Gambling  houses  and  such  impurities. 

"14.  The  Schout  shall  receive  all  fines  imposed  during  his  time,  pro- 
viding they  do  not  exceed  yearly  the  sum  of  Twelve  hundred  Guilders 
Seawant  value,  which  having  received  he  shall  enjoy  the  just  half  of  all 
the  other  fines,  on  condition  that  he  presume  neither  directly  or  indirectly 
to  compound  with  any  criminals,  but  leave  them  to  the  judgment  of  the 
Magistrates. 

"15.  The  Schout,  Burgomasters,  and  Schepens  aforesaid  shall  convoke 
an  assembly  on  the  nth  day  of  the  month  of  August,  being  eight  days 
before  the  election  of  new  Magistrates,  and  in  the  presence  of  the  Com- 
missioners to  be  qualified  for  that  purpose  by  the  Honble  Govern""  General, 
nominate  a  double  number  of  the  best  qualified  honorable  and  wealthy 
persons  and  only  such  as  are  of  the  Reformed  Christian  Religion,  or 
at  least  well  affected  toward  it,  as  Schout,  Burgomasters  and  Schepens 
aforesaid,  which  nomination  shall  be  handed  and  presented  folded  &  sealed, 
on  the  same  day,  to  his  Honor:  from  which  nomination  the  Election  shall 
then  be  made  by  his  Honor  on  the  7th  day  of  the  Month  of  August,  with 
continuation  of  some  of  the  old  Magistrates,  in  case  his  Honor  shall  deem 
the  same  necessary." 

Colve's  administration  had  a  short  hfe.  He  had  scarcely 
succeeded  in  estabhshing  his  government  and  in  laying  plans 
for  the  holding  of  it  against  possible  attacks  by  the  English, 
and  in  restoring  some  of  the  Dutch  practices  which  had  lapsed 
during  the  English  occupation,  when  his  rule  came  to  an  end. 
Across  the  Atlantic,  only  a  month  after  he  had  promulgated  his 

186 


HISTORY  OF  N EfV  YORK 

■"charter"  for  New  Orange,  the  treaty  of  Westminster  between 
Holland  and  England  was  agreed  upon ;  by  this  treaty  New 
Orange  was  granted  to  England,  and  the  Dutch  occupation  of 
Manhattan  terminated.  In  October,  1674,  a  Dutch  frigate  came 
giving  Colve  official  information  of  the  ceding  of  the  province 
to  England,  and  also  instructions  in  regard  to  surrendering.  In 
November,  Major  Edmund  Andros,  the  new  English  governor, 
arrived  and  the  formalities  of  evacuation  of  the  city  by  the 
Dutch  was  arranged.  All  was  accomplished  by  the  tenth  of  No- 
vember, and  the  end  of  the  Dutch  rule  of  the  province  of  New 
Netherland  was  recorded  in  the  court  records  of  New  Amster- 
dam as  follows : 

"On  the  'V,  November  Ao  1674,  the  Province  of  N.  Netherland  is  sur- 
rendered by  Governor  Colve  to  Governor  Edmund  Andros  in  behalf  of 
his  Majesty  of  Great  Britain."^ 

\ 
While  the  English  had  thus  finally  come  into  complete  and 
undisputed  possession  of  this  territory,  the  question  of  the 
judicial  status  of  New  York  under  its  changed  control  was 
raised  almost  at  once,  and  continued  unsettled  until  long  after 
the  colony  had  ceased  to  be  an  appendage  of  the  British  crown. 
For  generations  the  subject  has  been  discussed  by  historical  and 
legal  authorities ;  in  case  after  case  it  was  brought  before  the 
courts,  and  it  has  been  one  of  the  most  vexatious  subjects  which 
lawyers  and  judges  have  been  called  upon  to  consider.  It  has  long 
been  practically  settled  that,  whether  the  English  had  right  to  the 
territory  by  prior  ownership,  or  acquired  that  right  by  the  two 
successive  treaties  of  Breda  in  1667  and  Westminster  in  1674, 
or  fixed  a  judicial  status  by  the  terms  of  the  Dutch  surrender, 


20.     "Records  of  New  Amsterdam,"  vol.  VII,  p.   139. 

187 


LEGAL  AND  JUDICIAL 

the  question  has  no  conclusive  value  in  the  determination  of 
legal  rights.  Nevertheless  the  subject  is  an  impotrant  part  of 
the  history  of  the  jurisprudence  of  New  York  state. 

To  know  what  the  original  common  law  of  New  York  was 
and  to  trace  its  development,  it  is  necessary  to  consider  what 
changes  have  taken  place  in  its  sovereignty,  and  to  ascertain 
whether  at  a  particular  time  the  seat  of  the  sovereignty  of  New 
York  was  in  London,  or  at  the  Hague.  The  ultimate  sovereignty 
of  this  territory  had  been  claimed  by  Great  Britain,  France,  and 
by  the  United  Provinces  of  the  Netherlands.  The  French  king 
founded  his  title  to  northern  New  York  on  the  fact  that  his  sub- 
jects had,  first  of  Europeans,  ascended  the  St.  Lawrence  and 
its  tributaries,  including  Lake  Champlain,  and  had  explored  and 
occupied  their  shores.  In  like  manner  the  Netherlands  claimed 
all  the  country  lying  between  the  Connecticut  and  Delaware  riv- 
ers and  the  lands  drained  by  them,  upon  the  alleged  fact  of 
their  having  been  the  first  of  Europeans  to  ascend  these  rivers, 
and  others  intermediate  from  the  sea,  and  to  explore  and  settle 
their  shores.  On  the  other  hand,  the  English  king's  title  was 
based  on  the  fact  of  Cabot's  discovery  of  the  continent  in  1497, 
under  the  commission  of  Henry  VH.,  followed,  in  due  time,  by 
actual  occupation  at  different  points  on  the  seacoast  by  English 
subjects,  under  crown  grants,  prior  in  point  of  time  to  any  occu- 
pation of  contiguous  territory  by  the  Dutch,  who  were  conse- 
quently regarded  as  mere  interlopers,  trespassers  and  squatters 
by  the  English  of  New  England  and  of  Virginia,  between  whom 
they  had  settled.  The  English  government  had  protested  to  the 
government  at  the  Hague  against  this  invasion  of  English  terri- 
tory from  time  to  time,  both  under  the  monarchy  and  the  com- 
monwealth, ever  since  the  year  1614,  but  no  decisive  steps  had 

188 


HISTORY  OF  NEW  YORK 

been  taken  in  the  matter  until  1664,  shortly  after  the  restoration 
of  the  monarchy. 

Records  of  our  courts,  both  of  the  province  and  of  the  state, 
abound  with  cases  calling  for  the  judicial  determination  of  prop- 
erty rights  of  great  value,  not  only  in  highways,  in  rivers  and 
streams,  but  also  in  inheritances,  which  were  supposed  to  depend 
upon  whether  the  EHitch  government  was  ever  vested  with  the 
territorial  sovereignty  of  this  state,  as  against  England,  and, 
therefore,  whether  the  laws  and  ordinances  of  that  government, 
promulgated  here  during  its  forty-years  of  occupation,  ever  had 
any  force  and  validity  as  law,  and  so  surviving  the  English 
occupation  of  1664,  are  still  of  controlling  eflfect  in  determining 
such  rights.  In  main,  the  contentions  in  these  cases  have  been 
attempts  to  establish  what  was  the  original  common  law  of  New 
York, — the  common  law,  and  applicable  statues,  of  England, 
existing  in  England  at  the  time  of  the  occupation  in  1664,  or 
something  more  or  different.  If  the  reduction  of  the  Dutch  was 
a  conquest,  and  England  took  "title  by  conquest,"  as  understood 
by  the  law  of  nations,  which  is  a  part  of  Anglo-American  com- 
mon law,  the  change  of  sovereigns  from  Dutch  to  English  did 
not,  ipso  facto,  change  the  system  of  law  thereafter  established, 
or  affect  the  existing  property  rights  or  incidents  of  tenure,  but 
the  same  remained  after  the  conquest,  and  inured  to  the  benefit 
of  every  successor  in  interest  of  the  original  Dutch  grantee, 
unless  expressly  abrogated  by  the  conqueror.  On  the  other  hand, 
if  the  English  military  expedition  which  compelled  the  surrender 
of  the  Dutch  province  and  the  submission  of  its  inhabitants  to 
the  sovereignty  of  Great  Britain,  did  not  eflfect  "a  conquest," 
but,  at  most,  was  a  forcible  entry  upon  her  own  territory,  in  vindi- 
cation of  her  own  anterior  title  and  sovereignty,  as  well  founded 
as  her  title  and  sovereignty  to  Massachusetts  or  Virginia,  then 

189 


LEGAL  AND  JUDICI AL 

the  Dutch  law,  ordinances  and  customs,  never  had  any  vaHdity  as 
law,  and  ceased,  instanter,  on  the  entry  of  the  English.  So,  too, 
if  the  king's  original  right  of  pre-emption  in  the  soil  be  conceded, 
his  deed  of  conveyance,  before  actual  entry,  was  good  in  law, 
and  the  Duke  acquired  a  perfect  title. 

As  to  the  effect  of  the  English  occupation,  ipso  facto  to  dis- 
place Dutch  law  existing,  by  introducing  English  law,  it  is  to  be 
borne  in  mind  that  up  to  this  time  all  of  England's  colonies  orig- 
inated in  immigration,  and  it  was  only  in  the  subsequent  con- 
quering and  annexing  of  French,  Spanish,  Portuguese  and  Dutch 
colonies,  that  the  existing  laws  of  the  conquered  colonies  were 
left  intact.  In  the  case  of  New  York,  the  law,  except  as  the 
articles  of  surrender  expressly  allowed  it  to  survive  in  certain 
particulars,  was  never  recognized  by  any  English  or  provincial 
court,  or  by  crown  lawyers,  as  having  any  operation  here,  as 
law,  after  the  surrender,  or  as  governing  any  of  the  incidents 
of  land  tenure  acquired  in  the  province  before  that  date.  Ever 
since  then,  both  before  and  after  the  revolution,  the  courts  of 
this  state  appear  to  have  ignored  the  fact  of  the  Dutch  occupa- 
tion, or,  when  called  upon  to  consider  the  legal  consequence  of 
that  occupation  upon  our  jurisprudence,  have  hopelessly  divided 
on  the  question,  whether  New  York  was  to  be  considered,  in  law, 
as  acquired  by  conquest,  or  on  the  other  hand,  was  like  Massa- 
chusetts or  Virginia,  an  English  possession  by  original  right,  into 
which  the  common  law  and  statutes  of  the  realm  then  in  force,, 
so  far  as  they  were  applicable  to  the  condition  of  the  province, 
followed  the  surrender  as  certainly  as  they  followed  the  first 
settlement  of  the  other  English  colonies  to  the  east  and  south  of 
it.  The  difference  between  a  conquered  or  ceded  territory,  and 
a  plantation  made  by  immigration  and  settlement,  on  a  previously 
uninhabited   territory,   or   only    inhabited   by   aborigines,   is   an 

190 


HISTORY  OF  NEPF  YORK 

important   factor  in  determining  the  question  in  English  juris- 
prudence, of  what  law  governs  the  one  or  the  other.^ 

The  question  of  the  validity  of  the  grants  of  vast  tracts  of 
land  on  both  sides  of  Lake  Champlain,  made  by  the  French  pro- 
vincial government  at  Quebec,  provoked  vehement  discussion  in 
the  New  York  Assembly  in  1773,  when  it  published  a  vindica- 
tion of  the  British  title,  as  founded  on  "original  right"  by  virtue 
of  Cabot's  discovery,  and  not  by  conquest.  The  question  was 
argued  before  Kent,  Ch.  J.,  in  Jackson  ex  dcm  Winthrop  vs. 
Ingraham,  4  Johns.  163,  but  the  judgment  proceeded  on  other 
grounds.  Another  important  case  in  which  this  question  came 
up  was  the  Canal  Appraisers  of  the  State  of  New  York  vs.  The 
People  on  the  relation  of  George  Tibbits,  which  was  argued  and 
decided  in  the  court  for  the  correction  of  error,  (17  Wend. 
571).     Chancellor  Walworth  in  his  opinion  said: 

"Until  the  former  argument  of  this  cause  I  had  not  supposed  that  any 
one  seriously  contended  that  the  Roman-Dutch  law  which  was  brought 
here  by  the  original  settlers  from  Holland,  in  1614,  remained  a  part  of  the 
law  of  the  colony  after  the  capitulation  of  Governor  Stuyvesant.  I  also 
supposed  it  was  generally  conceded  that  the  province  of  New  York  was 
claimed  by  the  English  by  right  of  discovery,  and  not  by  right  of  conquest ; 
and  therefore,  that  when  it  was  taken  possession  of  as  an  English  colony 
under  the  Duke  of  York,  in  1664,  no  formal  act  was  necessary  to  substitute 
the  common  law  of  England  in  the  place  of  that  law  by  which  the  Dutch 
settlers  had  previously  been  governed.  In  a  colony  acquired  by  discovery 
or  occupancy  merely,  and  not  by  conquest  or  cession,  the  discoverers  and 


21.  For  an  extended  treatment  of  this  subject  see  the  chapter  "Eng- 
lish Colonial  Polity  and  Judicial  Administration,  1664-1776",  by  Amasa  A. 
Redfield,  in  "History  of  the  Bench  and  Bar"  of  New  York,  vol.  I,  p.  35. 
Robert  Ludlow  Fowler,  has  also  elucidated  this  question,  and  has  given 
an  account  of  its  progress  through  our  courts,  in  a  series  of  articles  on 
the  "Organization  of  the  Supreme  Court",  vol.  XIX,  of  the  Albany  Law 
Journal.  His  "History  of  Real  Property  in  New  York,"  his  introduction 
to  the  Grolier  Club's  publication  of  "Bradford's  Laws",  and  his  chapters  on 
the  "Constitutional  History  of  the  State,"  contributed  to  the  "^lemorial 
History  of  New  York,"  are  also  of  first  importance  to  an  intelligent  under- 
standing of  our  juridical  history. 

191 


LEGAL  AND  JUDICIAL 

new  occupants  thereof  carry  with  them  all  the  general  laws  of  the  mother 
country  which  are  adapted  to  their  new  situation  as  colonists." 

The  chancellor  further  insisted  that  even  if  the  province  be 
considered  acquired  by  the  English  by  conquest,  there  was  suf- 
ficient to  show  an  intention  on  the  part  of  the  conquerors  to 
abrogate  the  Dutch  laws  and  substitute  those  of  England  in  their 
place.  Lord  Mansfield,  in  Campbell  vs.  Hall,  decided  in  King's 
Bench  in  1774,  and  reported  in  i  Cowper,  204,  held  the  same 
opinion  on  this  point.  Among  other  cases  the  question  was 
argued  by  the  counsel  in  briefs  in  Jackson  vs.  Gilchrist,  15  John- 
son's Report  89,  and  in  brief  or  in  opinion  the  subject  appears 
in  Canal  Commissioners  vs.  The  People  ex  rel.  Tibbits,  5  Wen- 
dell 423  (1850)  and  Bogardus  vs.  Trinity  Church,  4  Paige  Ch. 
178  (1833). 


1CJ2 


CHAPTER  V 
English  Authority  Fully  Established 


13 


CHAPTER  V 

English  Authority  Fully  Established 

1683 — 1699 

THE  DUKE  OF  YORK  ACCEDES  TO  THE  POPULAR  DEMANDS GOVER- 
NOR DONGAN  SUMMONS  THE  FIRST  COLONIAL  ASSEMBLY  IN 
1683 — THE  "charter  OF  LIBERTIES"  PASSED A  JUDICIAL  SYS- 
TEM SET  UPON  A  STATUTORY  BASIS — THE  ACT  TO  SETTLE 
COURTS  OF  JUSTICE — FOUR  KINDS  OF  TRIBUNALS  ARE  CREATED 
— THE  ASSEMBLY  OF  169I  RE-ESTABLISHES  THE  JUDICIAL  SYS- 
TEM  AND  ENLARGES  IT EIGHT  TRIBUNALS  ARE  PROVIDED  FOR 

ORGANIZATION   OF  THE  COURTS. 

Signing  the  treaty  of  Westminster  in  1674,  Holland  surrend- 
ered to  England  all  its  possessions  in  the  New  World,  and  Gov- 
ernor Anthony  Colve  was  directed  by  the  States  General  to  give 
over  New  Netherland  to  the  representative  of  the  English  King. 
By  this  treaty,  whatever  questions  of  ownership  may  have  before 
existed  concerning  that  which  the  Dutch  claimed  in  America, 
were  finally  settled.  Henceforth  there  could  be  no  question  or 
doubt  as  to  the  title  of  England  to  this  territory.  It  was  neces- 
sary, however,  to  issue  a  new  patent  to  the  Duke  of  York, 
re-establishing  him  as  proprietor  of  the  land  which  had  been 
given  to  him  ten  years  before  by  King  Charles.  The  new  patent 
was  expressed  in  practically  the  same  terms  as  the  preceding 
one  in  1664.  In  one  particular  it  went  further  than  the  earlier 
document,  for  it  gave  to  the  duke  the  right  to  govern  not  only 
British  subjects  within  this  territory,  but  also  "any  other  person 

195 


LEGAL  AND  JUDICIAL 

or  persons".     Thus  he  had  complete  authority  over  non-English 
as  well  as  English  citizens  of  the  colony.^ 

Major  Edmund  Andros  was  commanded  by  the  Duke  to  be 
the  royal  "lieutenant  and  governor"  for  the  province  of  New 
York.  He  sailed  from  England  in  the  autumn  of  1674,  and 
arrived  at  Staten  Island  on  October  22.  His  commission  was 
almost  identical  with  that  which  had  been  issued  to  Governor 
Richard  Nicolls  ten  years  before.  His  instructions  from  the  Duke 
under  date  of  July  i,  1674,  were  more  minute  and  specific,  cov- 
ering the  details  of  trade,  land  owning,  quit  rents,  imports  and 
tariff,  freedom  of  conscience  and  so  on.  Especially  was  the  gov- 
ernor directed  to  satisfy  the  inhabitants,  "for  their  protection 
and  benefit,  for  the  encouragement  of  planters  and  plantations, 
and  the  improvement  of  trade  and  commerce,  and  for  the  preser- 
vation of  religion,  justice  and  equity  among  them."  Regarding 
the  administration  of  justice  the  instructions  were: 

"As  to  ye  cour.se  of  Justice  you  are  to  take  care  yt  't  be  administered 
wth  all  possible  equallity  wt^out  regard  to  Dutch  or  English  in  their  private 
concerns,  't  being  my  desire  as  much  as  may  be,  that  such  as  live  under 
your  governmt  may  have  as  much  satisfaction  in  their  condicon  as  is  pos- 
sible, and  yt  wthout  y*  least  appearance  of  partiality,  they  may  see  their 
just  rights  preserved  to  ym  inviolably — 

"And  as  to  y^  formes  of  Justice,  I  thinke  it  best  for  you  to  put  in  exe- 
cution such  lawes  rules  and  ord^s  as  you  find  have  been  established  by 
Coll.  Nicholls  and  Coll.  Lovelace,  and  not  to  vary  from  them  but  upon 
emergent  necessities,  and  ye  advice  of  yor  Councell  and  the  gravest  and  ex- 
perienced persons  there ;  and  if  any  such  alteracon  be  made,  that  it  be 
only  temporary  for  a  yeare,  and  if  it  be  not  confirmed  by  me  within  that 
time,  then  to  be  utterly  voyd  at  ye  end  of  that  yeare  and  of  no  force  at 
all,  as  if  such  alteracon  or  new  law  never  had  been  p^mitted.  I  therefore 
recomend  to  you  to  continue  y^  Courts  of  Justice,  as  they  have  been  es- 


I.  The  confirmation  of  this  second  grant  is  recorded  in  vol.  i,  p.  i, 
of  Deeds  in  the  office  of  the  Secretary  of  State  of  New  York  in  Albany. 
It  has  been  reproduced  in  the  "Report  of  the  Regents  of  the  University  on 
the  Boundaries  of  the  State  of  New  York",  1873,  P-  21.  See  also  "Jour- 
nal of  the  New  York  Assembly,"  March  8,  1673,  p.  92. 

196 


SIR  EDMUND  ANDROS. 

(1637-1714). 

Soldier :  Colonial  Governor  of  "all  the  Duke  of  York's 
territories  in  America,"  including  New  York,  1674-7,  1678-81  ; 
in  this  capacity  sat  as  judge  at  the  trial  of  Acting  Governor  Philip 
Carteret,  of  East  Jersey,  for  exercising  illegal  jurisdiction.  On 
the  consolidation  of  the  New  England  governments  in  1686  he 
was  appointed  Governor  General,  and  New  York  was  added  to 
his  jurisdiction  in  1688.  He  was  Governor  of  Virginia  1692-98, 
and  of  Guernsey   1704-6. 


H-»frc-w-.'fr:   .]>  •.^■•c.>^.- 


** 


■JflJ  1' 


Edmund  Andros 


HISTORY  OF  NEW  YORK 

tablishcd  and  used  hitherto.  And  as  to  ye  choice  of  Magistrates  and  Of- 
ficers of  Justice,  I  must  referr  yt  to  yo""  prudence,  w^h  when  you  shal 
be  upon  ye  place,  will  best  direct  you  to  those  persons  vvch  have  most 
reputacon  both  for  their  abilities  and  integrity,  and  for  those  reasons  most 
acceptable  to  y^  Inhabitants.  But  you  are  not  to  make  any  officer  for  above 
one  yeare  or  otherwise  y"  during  pleasure."  * 

On  August  6,  the  Ehike  had  transmitted  to  Andros  a  copy 
of  the  laws  under  which  New  York  had  been  governed  during 
the  regime  of  Nicolls  and  Lovelace.  These  laws  had  been  col- 
lated in  one  volume  and  the  instructions  of  James  were : 

"To  put  in  execucon  y^  said  laws  except  such  as  shall  have  apparent 
inconveniences  in  them ;  and  after  your  settlem*  at  New  York  w^h  ye  ad- 
vice and  helpe  of  your  Councell  carefully  to  peruse  and  consider  y©  same 
and  if  you  finde  it  necessary  for  ye  ease  and  benefitt  of  ye  people  and  y« 
good  of  my  service  to  make  any  alteracons,  addicons  and  amendmts  in 
ye  said  laws,  you  are  w^h  ye  first  opportunity  to  represent  ye  same  unto 
me,  to  ye  end  you  may  receave  from  me  such  ordrs  and  direccons  as  shall 
be  necessary  for  authorizing  you  to  put  ye  same  in  execucon.'" 

In  a  proclamation  of  November  9  Andros  announced  the  will 
of  James  regarding  the  rights  and  properties  of  the  ceded  prov- 
ince and  re-establishing  the  "Duke's  Laws :" 

"I  have  thought  fitt  to  publish  and  declare.  That  all  former  grants 
privileges  or  concessions  heretofore  granted  and  all  estates  legally  pos- 
sessed by  any  under  his  Royall  Highnesse  before  the  late  Dutch  govrnment. 
As  also  all  legall,  judicial  proceedings  during  that  government  to  my  ar- 
rivall  in  these  parts  are  hereby  confirmed ;  And  the  possessors  by  virtue 
thereof  to  remain  in  quiet  possession  of  their  rights.  It  is  hereby  further 
declared  that  the  known  Book  of  Laws  formerly  establisht  and  in  force 
under  his  Royall  highnesse  government  is  now  again  confirmed  by  his 
Royall  Highnesse  the  which  are  to  be  observed  and  practiced  together  with 
the  manner  and  times  of  holding  Courts  therein  menconed  as  heretofore. 


2.  "Documents  Relative  to  the  Colonial  History  of  the  State  of  New 
York",  by  E.  B.  O'Callaghan,  M.  D,,  LL.D.,  vol.  Ill,  p.  218. 

3.  Ibid.,  vol.  Ill,  p.  226. 

197 


LEGAL  AN D  JUDICIAL 

And  all  Magistrates  and  Civill  Officers  belonging  thereunto  to  be  chosen 
and  establisht  accordingly."* 

By  this  proclamation  the  town  courts  and  the  courts  of 
session  were  formally  re-established,  and  the  officers  who  had 
been  appointed  by  Governor  Lovelace  and  removed  by  Governor 
Colve  were  reinstated.  The  two  courts  of  sessions  on  Long 
Island  and  one  for  the  towns  of  Esopus  were  revived.  Sylvester 
Salisbury  was  appointed  to  be  high  sheriff  on  Long  Island, 
Michael  Siston  sheriff  of  Albany,  and  George  Hall  sheriff  of 
Esopus.  The  court  of  sessions  established  by  Governor  Nicolls 
in  Albany  in  1666  was  revived  and  afterwards  became  a  mayor's 
court.  In  two  months  after  the  proclamation,  the  first  session 
of  the  new  court  of  assizes  was  held  in  New  York,  on  the  day 
designated  in  the  Duke's  Laws,  and  was  held  regularly  there- 
after. The  code  became  fixed  as  the  general  law  of  the  prov- 
ince. 

On  the  following  day,  November  10,  Andros  changed  the 
name  of  the  city  from  New  Orange  to  New  York,  and  the  name 
of  the  fort  from  Fort  William  Henry  to  Fort  James.  At  the 
same  time  he  issued  an  order  reviving  the  English  form  of  gov- 
ernment for  the  city  of  New  York  as  it  had  existed  under  Gov- 
ernor Nicolls.  Matthias  Nicolls,  secretary  of  the  province,  was 
appointed  mayor,  and  John  Lawrence  deputy  mayor.  James  Gibbs, 
who  had  been  a  councillor  of  Governor  Lovelace,  was  made 
sheriff,  and  the  aldermen  were  William  Dervall,  Frederick  Phil- 
ipse,  Gabriel  Minvielle  and  John  Winder. 

On  November  13,  1674,  three  days  after  the  issue  of  the 
decree  of  the  governor,  the  mayor's  court  of  New  York  was 


4.  "Documents  Relative  to  the  Colonial  History  of  the  State  of  New 
York,"  by  E.  B.  O'Callaghan,  M.  D.,  LL.D.,  vol.  Ill,  p.  227.  "The  Colonial 
Laws  of  New  York,"  vol.  I,  p.  108. 

198 


HISTORY  OF  NEW  YORK 

again  convened.  An  order  that  the  records  should  be  copied 
thereafter  in  Enghsh  was  entered,  and  every  paper  offered  was 
preserved  in  that  language,  except  in  the  case  of  those  Dutch  or 
other  foreign  individuals  who  were  too  poor  to  pay  for  transla- 
tion. 

No  important  change  was  made  in  the  mayor's  court  of  New 
York  by  these  acts  of  Andros.  A  long  step  was  taken,  however, 
towards  the  ultimate  adoption  of  the  English  method  of  pro- 
cedure ;  and  the  complete  making  over  of  the  Dutch  colony  in 
all  particulars  into  an  English  community  proceeded  rapidly.  Mat- 
thias Nicolls,  the  new  mayor,  like  Thomas  Willett,  who  was 
mayor  under  Governor  Nicolls,  had  long  been  a  resident  of 
the  city  when  it  was  New  Amsterdam.  With  two  exceptions 
the  twelve  immediate  successors  of  Nicolls  in  the  mayoralty,  were 
either  of  Dutch  origin  or  had  been  residents  of  New  Amsterdam 
under  the  Dutch.  The  provision  that  all  papers  should  be  in  the 
English  language  introduced  the  English  forms,  but  still,  to  a  very 
considerable  extent,  the  Dutch  modes  of  practice  prevailed.  This 
condition  of  things  continued  for  nearly  a  decade. 

Mayor  Nicolls  and  the  board  of  aldermen  who  were  inducted 
into  office  with  him  continued  until  October,  1675.  At  that  time 
Andros  granted  a  commission  or  charter  under  which  the  cor- 
porate government  as  it  had  before  existed  was  reinstated;  the 
number  of  aldermen  was  increased  to  six,  and  upon  the  corpora- 
tion was  conferred  "full  power  and  authority  to  treat  courts, 
administrate  justice,  and  rule  and  govern  the  inhabitants  accord- 
ing to  the  laws  of  the  province  and  the  privileges  and  practices 
of  the  state."^ 

For  the  court  of  sessions  in  New  York  the  mayor,  with  any 
four  aldermen,  was  authorized  to  sit.    As  before,  the  civil  muni- 


5.    "Records  of  the  Mayor's  Court,"  vol.  II. 

199 


LEGAL  AND  JUDICIAL 

cipal  business  and  any  criminal  business  which  might  come  before 
the  mayor's  court,  were  discharged  at  the  regular  sittings,  no 
arrangement  being  made  for  the  separation  of  the  civil  from  the 
criminal  functions  of  the  magistrates.  Regular  sittings  of  the 
court  were  fixed  for  every  three  weeks.  Following  the  prac- 
tice instituted  by  Nicolls,  an  order  was  made  that  all  cases  should 
be  tried  before  a  jury,  but,  as  before,  this  custom  was  not  strictly 
adhered  to.  The  influence  of  the  Dutch  methods  was  still  felt, 
and  the  Dutch  practice  of  referring  cases  to  arbitration  was  con- 
tinued and  practiced  very  generally  for  many  years. 

In  an  answer  to  the  Lords  of  Trade  about  New  York  in 
1678,  Governor  Andros  described  the  courts  then  existing  as 
follows : 

"i.  The  Governo'"  is  to  have  a  Councell  not  exceeding  tenn  wth 
whose  advice  to  act  for  the  safty  &  good  of  the  country,  &  in  every  towne, 
Village  or  parish  a  Petty  Court,  &  Courts  of  Sessions  in  the  several 
precincts  being  three,  on  Long  Island,  &  Townes  of  New  Yorke,  Albany 
&  Esopus,  &  some  smale  or  poore  Islands  &  out  places;  And  the  General 
Court  of  Assizes  composed  of  the  Governor  &  Councell  &  all  the  Jus- 
tices &  Magistrates  att  New  Yorke  once  a  yeare,  the  Petty  Courts  Judge  of 
fiue  pounds,  &  then  may  appeale  to  Sessions,  they  to  twenty  pounds  & 
then  may  appeale  to  Assizes  to  y^  King,  all  s^  courts  as  by  Law. 

2.  The  Court  of  Admiralty  hath  been  by  special!  Comission  or  by 
the  Court  of  Mayor  &  Aldermen  att  New  Yorke. 

3.  The  cheife  Legislatiue  power  there  is  in  the  Governor  with  ad- 
vice of  the  Councell  the  executive  power  Judgemts  giuen  by  ye  Courts 
is  in  the  sheriffs  &  other  civiil  officers. 

4.  The  law  booke  in  force  was  made  by  the  Governor  &  Assembly 
att  Hempsted  in  1665  and  since  confirmed  by  his  Royall  Highnesse.'" 

In  1682  two  English  lawyers  arrived  in  the  colony,  and  oth- 
ers followed  them  soon  after.  Naturally,  the  tendency  of  Eng- 
lish practice  to  supersede  the  Dutch  forms  grew  stronger,  and 


6.     "Documents  Relative  to  the  Colonial  History  of  the  State  of  New 
York,"  by  E.  B.  O'Callaghan,  M.  D.,  LL.D.,  vol.  III.  p.  260. 

200 


HISTORY  OF  NEW  YORK 

it  was  not  long  before  the  system  of  special  pleading  as  in  vogue 
in  England  gradually  forced  its  way  into  practice.  Nevertheless, 
the  English  forms  of  procedure  did  not  entirely  supersede  those 
of  Dutch  origin  until  well  into  the  first  and  second  decades  of 
the  eighteenth  century.  Finally  however,  arbitration,  the  partic- 
ularly Dutch  custom,  ceased  to  be  resorted  to  except  in  the  case 
of  disputed  actions  which  were  referred  generaly  to  three  per- 
sons, who  were  first  called  arbitrators  and  then  referees.  This 
custom  of  reference  continued  in  its  original  form  until  1772, 
when  it  was  finally  regulated  by  statute  enactment. 

The  popular  desire  for  home  government  which  had  been 
manifested  under  both  the  English  and  Dutch  governors  con- 
tinued to  grow  in  strength,  and  the  question  was  brought  forcibly 
to  the  attention  of  the  governor  and  through  him  to  the  Duke 
of  York.  In  frequent  letters  to  Andros,  the  Duke  of  York  com- 
mented unfavorably  upon  this  public  desire  for  a  general  assem- 
bly, expressing  the  opinion  that  the  court  of  assizes,  which  was 
a  legislative  quite  as  much  as  a  judicial  body  was  sufficient  for 

the  purpose.     Thus  on  January  28,  1676,  he  wrote : 

i 
"I  have  formerly  writt  to  you  touching  Assemblyes  in  those  conntreys 
and  have  since  observed  what  several!  of  your  lattest  letters  hint  about  that 
matter.  But  unless  you  had  offered  what  qualificacons  are  usuall  and  proper 
to  such  Assemblyes,  I  cannot  but  suspect  they  would  be  of  dangerous  con- 
sequence, nothing  being  more  Knowne  then  the  aptness  of  such  bodyes  to 
assume  to  themselves  many  priviledges  wch  prove  destructive  to,  or  very 
oft  disturbe,  the  peace  of  y^  governmt  wherein  they  are  allowed.  Neither 
doe  I  see  any  use  of  them  wch  is  not  as  well  provided  for,  whilest  you 
and  your  Councell  governe  according  to  y®  laws  established  (thereby  pre- 
serving every  man's  property  inviolate)  and  whilest  all  things  that  need 
redresse  may  be  sure  of  finding  it,  either  at  y^  Quarter  Sessions  or  by 
other  legal!  and  ordinary  ways  or  lastly  by  appeale  to  myselfe.  But  how- 
soever if  you  continue  of  y®  same  opinion,  I  shall  be  ready  to  consider  of 
any  proposalls  you  shall  send  to  yt  purpose.' 


7.    "Documents  Relative  to  the  Colonial  History  of  the  State  of  New 
York,"  by  E.  B.  O'Callaghan,  M.  D.,  LL.D.,  vol.  Ill,  p.  235. 

201 


LEGAL  AND  JUDICIAL 

Again  writing  on  the  same  subject,  under  date  of  April  6, 
1675,  he  said: 

"First  yn  touching  Generall  Assemblj'es  wch  ye  people  there  seem  de- 
sirous of  intimacon  of  their  neighbour  Colonies,  I  thinke  you  have  done 
well  to  discourage  any  mocon  of  yt  kind,  both  as  being  not  at  all  compre- 
hended in  yo""  Instructions  nor  indeed  consistent  wth  y^  forme  of  governm* 
already  established,  nor  necessary  for  y^  ease  or  redresse  of  any  grievance 
yt  may  happen,  since  yt  may  be  as  easily  obtained,  by  any  peticon  or  other 
addresse  to  you  at  their  Generall  Assizes  (wch  js  once  a  yeare)  where 
the  same  persons  (as  Justices)  are  usually  present,  who  in  all  probability 
would  be  theire  Representatives  if  another  constitucon  were  allowed.'" 

Also,  Sir  John  Werden,  secretary  of  the  Duke,  in  a  letter  to 
the  governor,  January  28,  1676,  thus  expressed  these  views  of 
his  royal  master : 

"It  is  his  Rll  Highsa  intencons  to  haye  all  persons  whatsoever  treated 
with  all  humanity  and  gentleness  that  can  consist  with  the  honour  and 
safety  of  yo^  governm*  to  the  end  y'  where  the  laws  doe  inflict  a  punish- 
ment it  may  seeme  rather  for  example  to  deterr  others  from  the  like 
crimes,  than  to  afflict  the  party  punished,  except  where  his  malice  appears 
plainly  to  aggravate  his  offense.'" 

Andros  made  a  visit  to  England  in  the  autumn  of  1677  on 
private  business,  and  the  success  with  which  he  had  governed 
the  province  won  for  him  from  the  Duke  a  cordial  reception.  He 
received  a  patent  of  knighthood,  and  returned  to  New  York  in 
the  summer  of  1678  as  Sir  Edmund  Andros.  Almost  from  the 
first,  after  his  return,  he  found  difficulties  encompassing  him, 
and  at  once  he  was  in  serious  controversy  with  Governor  Philip 
Carteret  of  New  Jersey,  in  an  endeavor  stringently  to  enforce 
one  of  the  Duke's  orders  that  all  vessels  bringing  cargoes  to  his 
original  territory,  which  included  New  Jersey,  should  enter  at 


8.  "Documents  Relative  to  the  Colonial  History  of  the  State  of  New 
York."  by  E.  B.  O'Callaghan,  M.  D.,  LL.D.,  vol.  Ill,  p.  230. 

9.  Ibid.,  vol.  Ill,  p.  237. 

202 


Thomas  Dongan 


THOMAS  DONGAN. 

(1634-1715)- 

Soldier  and  Statesman:  Earl  of  Limerick;  Colonial  Gov- 
ernor, 1683-88.  In  1686  granted  charter  to  City  of  New  York 
and  also  to  City  of  Albany. 


HISTORY  OF  N  EfV  YORK 

the  New  York  Custom  House.  In  the  end,  Andros  caused  the 
arrest  and  imprisonment  of  Carteret.  Upon  trial  before  a  special 
court  of  assizes  which  was  presided  over  by  Andros  in  person, 
Carteret  was  acquitted.  As  a  result  of  this  affair,  representations 
were  made  to  the  Duke  in  regard  to  Andros,  who  finally  was 
recalled  in  a  letter  from  Windsor  under  date  of  May  24,  1680. 
He  left  New  York  on  January  6,  1681,  and  sailed  from  Sandy 
Hook  five  days  later.  In  the  examination  regarding  his  conduct 
in  New  York,  which  followed  immediately  upon  his  arrival  in 
England,  he  was  completely  vindicated,  and  was  complimented 
upon  the  success  of  his  administration,  being  further  appointed 
as  "a  gentleman  of  the  King's  Privy  Chamber."  When  he  lefl 
New  York  he  commissioned  Lieutenant  Governor  Brockholst  to 
rule  as  commander-in-chief.  Brockholst  remained  at  the  head  of 
affairs  until  the  coming  of  Colonel  Thomas  Dongan,  in  1683,  but 
his  administration  was  not  marked  by  any  distinguishing  char- 
acteristics of  enterprise  or  capacity. 

As  soon  as  it  was  decided  in  England  to  send  Dongan  to 
take  the  place  vacated  by  Andros,  a  commission  was  issued  to 
him,  September  30,  1682,  practically  the  same  as  that  given  to 
his  predecessor.^"  He  did  not  sail  for  his  new  post  of  duty  until 
the  next  summer  and  he  arrived  off  Nantasket,  in  Massachusetts 
Bay,  on  August  10,  1683.  From  Boston  he  journeyed  overland 
and  across  the  sound  to  Long  Island  and  thence  to  New  York, 
reaching  that  city  upon  the  twenty-fifth  of  August.  On  the 
Monday  following  his  arrival  he  appeared  at  the  city  hall  and 
made  public  his  commission,  announcing  at  the  same  time  that 
he  was  directed  to  confirm  to  the  city  all  its  existing  rights  and 


10.  "History  of  the  State  of  New  York,"  by  J.  R.  Brodhead,  vol.  II, 
P-  372;  "Colonial  Laws  of  New  York,"  vol.  II,  p.  25.  "Documents  Rela- 
tive to  the  Colonial  History  of  the  State  of  New  York,"  by  E.  B.  O'Calla- 
ghan,  M.  D.,  LL.D.,  vol.  Ill,  pp.  331-333. 

203 


LEGAL  AND  JUDICIAL 

privileges  and  even  more,  as  might  be  found  necessary  in  the 
future.  In  addition  to  his  advisors  in  the  council,  Anthony 
Brockholst  was  retained  in  the  office  which  he  had  held  under 
Andros.  John  Spragg  replaced  John  West  as  secretary  of  the 
province  and  of  the  court  of  assizes,  and  Lucas  Santen  was 
appointed  collector  or  receiver  general  in  place  of  William  Dyre. 
Cornells  Steenwyck  was  named  as  mayor.  In  Dongan's  instruc- 
tions he  was  authorized  by  the  Duke  to  erect  courts : 

! 
"I  doe  also  hereby  authorize  you  wth  advice  of  my  s<J  council!  to  elect 
and  settle  such  and  soe  many  courts  of  Justice  &  in  such  places  as  you 
shall  wth  advice  of  my  said  Councill  judge  to  be  necessary  for  the  good 
governmt  of  the  said  place  &  for  adjudgeing  and  determineing  all  matfs 
Civill  and  Criminall  wherein  you  are  to  take  care  that  y^  same  be  as  ncre 
answerable  to  y^  laws  and  Courts  of  Justice  in  England  as  may  be,  and 
to  give  me  an  ace*  of  such  courts  as  you  shall  thinke  fitt  soe  to  erect,  to 
ye  end  I  might  confirme  or  reject  the  same  as  I  shall  see  cause,  but  the 
said  courts  may  proceed  and  hold  Recognizance  of  such  matters  as  you  and 
yo^  Councill  shall  appoint  until  my  pleasure  be  signified  to  y^  contrary."" 

A  court  of  session  was  allowed  to  the  city,  and  the  mayor 
and  aldermen  were  commissioned  to  be  justices  of  the  peace. 

In  1681,  during  the  Nicholson  regime,  the  people  had 
actively  renewed  their  demand  for  a  provincial  assembly,  for 
which  they  had  been  constantly  contending  from  back  in  the 
time  of  the  Dutch  rule.  A  question  of  the  collection  of  import 
duties  arose.  Several  merchants  had  refused  to  pay  duties  on 
goods  which  they  had  imported,  and,  in  the  absence  of  the  col- 
lector, William  Dyer,  had  removed  their  goods  from  the  ves- 
sels which  had  brought  them  into  port.  The  collector,  proceed- 
ing in  the  name  of  the  king,  seized  these  goods,  and  suit  was 
brought  against  him.     In  the  trial  which   followed  the  verdict 


II.     "Documents   Relative  to  the   Colonial    History   of   the    State   of 
New  York,"  by  E.  B.  O'Callaghan.  M.  D.,  LL.D.,  vol.  Ill,  p.  Z3,i- 

204 


HISTORY  OF  NEIV  YORK 

was  against  him,  and  at  the  same  time  the  jury  took  the  oppor- 
tunity to  present  to  the  court  of  assizes  that  the  lack  of  a  pro- 
vincial legislative  body  which  could  pass  laws  governing  the 
administration  of  affairs  was  a  very  great  grievance.  In  this 
emergency  the  court  appointed  John  Young,  the  high  sheriff  of 
Long  Island,  to  draw  up  a  petition  to  the  Duke  of  York, 
asking  for  the  establishment  of  a  general  assembly  for  the 
province. '- 

Recognizing  the  imperativeness  of  these  demands  the  Duke 
of  York  finally  concluded  that  they  must  be  acceded  to.  Ac- 
cordingly in  his  instructions  to  Dongan  he  gave  him  power  to 
call  a  general  assembly : 

"You  are  also  w'*i  advice  of  my  Councill  w^h  all  convenient  speed 
after  yo""  arrival!  there,  in  my  name  to  issue  out  Writts  or  warrts  of 
Sumons  to  ye  sev^'all  SherifFes  or  other  proper  Offices  in  every  part  of 
yo""  said  govcrnm*  wherein  you  shall  expresse  that  I  have  thought  fitt  that 
there  shall  be  a  Gen^  Assembly  of  all  the  Freeholders,  by  the  p^sons  who 
they  shall  choose  to  rePsent  ym  in  ord^"  to  consulting  w^h  yo^selfe  and  the 
said  Councill  what  laws  are  fitt  and  necessary  to  be  made  and  established  for 
the  good  weale  and  governm*-  of  the  said  Colony  and  its  Dependencyes, 
and  of  all  the  inhabitants  thereof,  &  you  shall  issue  out  the  said  Writt 
or  Sumons  at  least  thirty  dayes  before  the  time  appointed  for  ye  meeting  of 
the  said  Assembly,  w^h  time  and  also  the  place  of  their  meeting  (w^h  I 
intend  shal  be  in  New  Yorke)  shall  also  be  menconed  &  expressed  in  the 
said  Writt  or  Sumons,  and  you  w**^  advice  of  my  said  Councill  are  to  take 
care  to  issue  out  soe  many  W^ritts  or  sumons  and  to  such  officers,  in  every 
part,  not  exceeding  eightcene,  soe  yt  the  planters  or  Inhabitants  of  every 
part  of  ys  s<i  governmt  may  have  convenient  notice  thereof  and  attend  at 
such  ellection,  if  they  shall  thinke  fitt.  And  w"  the  said  Assembly  soe 
elected  shalbe  mett  at  y^  time  and  place  directed,  you  shall  lett  ym  know 
that  for  the  future  it  is  my  rcsolucon  that  ye  said  GenH  Assembly  shall 
have  free  liberty  to  consult  and  debate  among  themselves  all  matfs  as 
shall  be  apprehended  proper  to  be  established  for  laws  for  the  good  gov- 
ernmt  of  the  said  colony  of  New  Yorke  and  its   Dependencyes,  and  y* 


12.  "History  of  the  State  of  New  York,"  by  J.  R.  Brodhead,  vol.  IT, 
p.  352.  "Documents  Relative  to  the  Colonial  Historv  of  the  State  of  New 
York,"  by  E.  B.  O'Callaghan,  M.  D.,  LL.D.,  vol.  HI,  p.  287. 

205 


LEGAL  AND  JUDICIAL 

if  such  laws  shalbe  propounded  as  shall  appeare  to  mee  to  be  for  the  mani- 
fest good  of  the  Country  in  generall  and  not  p^judiciall  to  me,  I  will  as- 
sent unto  and  confirme  ym  In  the  passing  and  enacting  of  all  such  laws 
as  shalbe  agreed  unto  by  the  said  Assembly,  wch  I  will  have  called  by  the 
name  of  the  Generall  Assembly  of  my  Colony  of  New  Yorke  and  its  Dc- 
pendencyes  wherein  the  same  shalbe  (as  I  doe  hereby  ordaine  they  shalbe) 
p^sented  to  you  for  yo""  assent  thereunto."" 

Acting  in  accordance  with  these  orders,  Dongan  convened 
this  assembly  in  New  York  City,  October  17,  1683.  It  was  the 
first  real  legislative  body  to  meet  in  the  province  of  New  York. 
According  to  the  instructions  of  the  duke,  the  membership  of 
the  assembly  was  to  be  eighteen  representative  citizens  selected 
by  the  governor  and  his  council,  four  from  the  city  of 
New  York,  two  from  each  of  the  three  ridings  of  Yorkshire, 
one  from  Staten  Island,  two  from  the  towns  of  Esopus,  two 
from  Albany  and  Rensselaerswyck,  one  from  Schenectady,  one 
from  Pemaquid,  and  one  from  Martha's  Vineyard  and  Nan- 
tucket. Six  delegates  were  chosen  by  a  direct  vote  of  the 
freeholders  or  by  a  delegate  convention.  The  membership  of  this 
first  assembly  has  not  been  preserved,  but  other  records  show 
that  among  its  members  were  Henry  Beeckman,  William  Ash- 
ford,  Giles  Goddard,  Samuel  Mulford,  John  Lawrence,  Matthias 
Nicolls  and  William  NicoUs.  The  clerk  was  John  Spragg,  an  im- 
portant official  individual,  inasmuch  as  he  was  also  secretary  of 
the  province,  a  member  of  Dongan's  council  and  clerk  of  the 
court  of  assizes.  During  this  first  session  of  three  weeks  the 
assembly  passed  fifteen  acts ;  most  conspicuous  among  these  was 
that  which  was  called  "The  Qiarter  of  Libertyes  and  privi- 
ledges  granted  by  his  Royall  Highnesse  to  the  Inhabitants  of  New 
Yorke  and  its  Dependencyes." 


13.     "Documents  Relative  to  the  Colonial  History  of  the  State  of  New 
York,"  by  E.  B.  O'Callaghan,  M.  D.,  LL.D.,  vol.  Ill,  p.  ZZi. 

206 


HISTORY  OF  NEW  YORK 

Among  other  acts  passed  by  this  assembly  was  that  of  No- 
vember I,  1693,  entitled  "An  Act  to  settle  Courts  of  Justice." 
By  this  act  a  judicial  system  consisting  of  four  tribunals  was 
decreed  for  the  province.  These  were  the  town  or  justices' 
courts  for  the  trial  of  small  causes  to  be  held  each  month ;  the 
county  courts,  or  courts  of  session,  to  be  held  quarterly  or  half 
yearly;  a  general  court  of  oyer  and  terminer  and  general  gaol 
delivery,  with  original  and  appellate  jurisdiction;  and  a  court 
of  chancery,  to  be  the  supreme  court  of  the  province."  This 
act  also  provided  that  the  courts  should  "not  be  or  remaine 
Longer  in  force,  than  for  the  time  &  space  of  Two  Years  and 
until  the  End  of  the  sitting  of  the  next  Assembly  after  the 
Expiration  of  the  Said  Two  Years." 

As  judges  of  the  new  court  of  oyer  and  terminer,  Dongan 
appointed  Matthias  Nicolls,  and  John  Palmer,  an  English  lawyer 
who  had  come  to  New  York  from  Barbadoes,  in  1674.  The 
governor  retained  for  himself,  as  all  his  predecessors  had  done, 
the  function  of  a  surrogate  or  probate  judge  for  the  whole  prov- 
ince. The  governor  and  council  also  constituted  a  court  of 
exchequer,  to  meet  on  the  first  Monday  of  each  month. 

The  first  historian  of  New  York,  writing  about  1757,  said 
that  all  "laws  made  here  antecedent  to  this  period  (1691)  are 
discharged  both  by  the  legislature  and  the  courts  of  law ;  the 
validity  of  the  old  grants  of  the  powers  of  government,  in  sev- 
eral American  Colonies,  is  very  much  doubted  in  this  province. "^^ 


14.  The  original  of  this  act  is  not  in  the  office  of  the  Secretary  of 
State  in  Albany.  A  copy  is  in  the  manuscript  compilation  of  the  "Don- 
gan Laws"  formerly  in  the  office  of  the  Secretary  of  State,  but  now  in  the 
New  York  State  Library.  That  the  act  was  received  by  the  Board  of 
Trade  on  February  17.  1684,  appears  from  the  transcript  of  the  journal 
thereof.  See  "Documents  Relative  to  the  Colonial  History  of  the  State  of 
New  York,"  by  E.  B.  O'Callaghan,  M.  D.,  LL.D.,  vol.  IH,  p.  354,  and 
"Colonial  Laws  of  New  York."  vol.  L  P-   125. 

15.  "History  of  New  York",  by  William  Smith,  Edition  of  1814,  p. 
124. 

207 


LEGAL  AND  JUDICIAL 

But,  as  another  commentator  upon  this  colonial  legislation  has 
said,  it  was  never  doubted  in  England.  While  general  legisla- 
tive power  for  England  was  never  claimed  by  any  of  her  sov- 
ereigns, it  was  never  doubted  that  the  crown  possessed  this  high 
prerogative  power  over  the  colonies,  and  that  this  power  was 
communicable  to  a  subject.  In  New  York  the  Duke  of  York's 
deputy-governor  might,  as  he  did,  declare  that  "no  jury  shall 
exceed  the  number  of  seven,  nor  be  under  six,  unless  in  special 
causes  upon  Life  and  Death,  the  justices  shall  think  fit  to 
appoint  twelve," — the  verdict,  in  civil  cases,  to  be  by  a  majority 
vote  and  perjury  to  be  capital  felony  in  certain  cases.  But  in 
England,  Macauley  tells  us  that  "the  most  violent  and  imperious 
Plantagenet  never  fancied  himself  competent  to  enact,  without 
the  consent  of  his  great  council,  that  a  jury  could  consist  of  ten 
persons,  instead  of  twelve." 

Thus  the  year  1683  is  memorable  in  the  history  of  New 
York,  as  that  in  which  the  first  representative  assembly  con- 
vened and  entered  upon  the  business  of  legislation.  The  laws 
which  were  propounded  at  the  two  sessions  of  this  assembly  are 
of  singular  historical  interest,  but,  for  lack  of  evidence  of  their 
ever  having  been  assented  to  by  the  duke,  they  have  been 
regarded  by  some  authority  as  not  being  legal  enactments.  Nev- 
ertheless, some  of  the  more  important  of  these  measures  were 
substantially  re-enacted  by  the  assembly  of  169 1,  and  in  the  end 
became  incorporated  in  the  laws  of  the  colony. 

At  the  close  of  the  first  meeting  of  this  assembly  it  was 
voted  to  adjourn  to  meet  again  on  October  21,  1684.  At  the 
second  meeting  thirty-one  acts  were  passed,  among  them,  the 
last  of  the  session,  being  that  to  abolish  the  general  court  of 
assizes.  When  this  second  meeting  adjourned  it  was  to  meet  in 
September,  1685.    Upon  that  date  it  was  dissolved  by  the  gov- 

208 


HISTORY  OF  NEW  YORK 

ernor,  and  a  new  assembly  called  to  meet  in  New  York  on  Oc- 
tober 20  following.  Of  this  assembly  William  Pinhorne  was 
speaker,  and  six  laws  were  enacted.  It  adjourned  to  meet  in 
September,  1686,  but  before  that  time  "such  changes  happened 
that  it  never  met  again."  These  changes,  as  will  presently  be 
seen,  were  the  dissatisfaction  of  James  with  the  actions  of  the 
assembly,  and  his  abolishing  of  that  legislative  body. 

Meantime,  on  November  9,  1683,  the  mayor  and  aldermen 
of  New  York  petitioned  Dongan  that  the  "ancient  customes, 
Priviledges  and  Immunityes"  granted  by  Governor  Nicolls  in 
1665,  should  be  confirmed  by  a  charter  from  the  Duke  of  York; 
and  also 

"that  the  Recorder  bee  appointed  by  the  Governor  and  Council!  who 
shall  be  Judge  of  the  City  and  Corporacon  and  be  aydeing  and  assisteing  to 
the  Mayor  and  Aldermen  &  Comon  Councill  in  all  matters  that  relate  to 
the  well  beinge  and  supporte  thereof." 

And  that  "a  Sheriff  bee  annually  appointed  by  the  Gover- 
nor &  Councel."^® 

When  this  petition  was  presented  to  the  governor  he  gra- 
ciously agreed  to  it  "in  almost  every  particular,"  and  thereupon 
ordered  that  the  substance  of  it  should  immediately  be  put  into 
practice  "until  such  times  as  his  Royal  Highnesses  pleasure  shall  be 
further  known  therein."  The  metropolitan  officers  who  were 
serving  were  re-appointed.  John  West  was  commissioned  to  be 
clerk  of  the  city  of  New  York,  and  John  Tudor,  a  lawyer,  to  be 
sheriflF. 

On  January  14  of  the  succeeding  year,  Dongan  issued  a  com- 
mission as  recorder  to  James  Graham,  who  for  seventeen  years, 
with  but  one  slight  interruption,  continued  to  hold  that  office. 


16.    "Documents   Relative   to   the    Colonial    History   of   the    State   of 
New  York,"  by  E.  B.  O'Callaghan,  M.  D.,  LL.D.,  vol.  Ill,  p.  338. 

209 


14 


LEGAL  AND  JUDICI AL 

On  the  day  following  this  appointment,  all  the  new  magistrates 
went  in  a  body  to  the  fort,  where  they  were  sworn  in  before 
the  governor  and  council ;  then  they  returned  and  opened  court, 
the  recorder  taking  his  seat  on  "ye  right  hand  of  ye  mayor."" 
Thomas  Rudyard  was  appointed  attorney  general  of  the  prov- 
ince. Rudyard,  a  London  lawyer,  was  a  Quaker,  who  had  been  a 
member  of  William  Penn's  Council  in  Pennsylvania  in  1670,  and 
subsequently  deputy  governor  in  New  Jersey  in  1683,  from  which 
position  he  was  dismissed  by  the  proprietors  of  New  Jersey  a 
year  later.  As  attorney  general  of  New  York  his  chief  duty  was 
to  look  after  the  interests  of  the  king  and  the  duke,  but  he  held 
this  office  for  only  about  a  year.  To  succeed  Rudyard,  James 
Graham,  who  was  then  the  recorder  for  the  city  of  New  York 
was  appointed  attorney  general.  Isaac  Swinton  was  appointed 
to  be  clerk  in  the  court  of  chancery  in  the  place  of  James  Gra- 
ham. 

Upon  the  accession  of  the  Duke  of  York  to  the  throne  of 
England  as  King  James  II.  in  1685,  the  legal  status  of  the  prov- 
ince of  New  York  underwent  a  change.  It  was  no  longer 
the  private  possession  of  a  royal  English  subject  hold- 
ing it  as  proprietor,  but  it  became  an  American  province 
of  the  crown.  Therefore,  in  respect  to  its  local  govern- 
ment and  the  appointment  of  officers  to  administer  it.  New 
York  was  a  county  palatine,  like  the  counties  of  Chester,  Durham 
and  Lancaster,  in  England,  in  which  from  a  remote  period,  down 
to  the  time  of  King  Henry  VIII.,  the  Earl  of  Chester,  the  Bishop 
of  Durham  and  the  Duke  of  Lancaster,  respectively,  had  jura 
regalia  as  completely  as  the  king  in  his  palace,  and  consequently 
administered  justice  within  their  respective  counties,  by  judges 


17.     "Documents   Relative   to   the   Colonial   History  of  the    State   of 
New  York,"  by  E.  B.  O'Callaghan,  M.  D.,  LL.D.,  vol.  Ill,  p.  Z37- 

210 


HISTORY  OF  NEW  YORK 

appointed  by  themselves  and  not  by  the  crown.  But,  in  this  case, 
it  was  the  king  sitting  in  council,  who  was  the  immediate  source 
of  all  power,  and  new  commissions  to  the  provincial  officers 
became  necessary. 

Notwithstanding  that,  as  duke,  James  had  yielded  to  the 
desires  of  the  people  for  a  provincial  assembly,  he  was  far  from 
satisfied  with  the  result  of  the  experiment.  Some  of  the  acts  of 
the  first  session  of  the  general  assembly  displeased  him  very 
much,  particularly  the  passage  of  the  so-called  charter  of  lib- 
erties. The  charter  was  really  not  a  charter  at  all.  Although  it 
was  an  act  of  the  assembly  it  had  no  force  until  approval  by 
the  governor  and  duke,  and  as  it  was  finally  vetoed  by  James 
and  thus  became  null  and  void,  it  was  in  the  end  no  more  than 
an  expression  of  opinion  by  the  representatives  of  the  people  as 
to  what  they  consider  the  popular  rights  and  privileges.  Since 
that  time  James  had  ascended  to  the  throne,  and  now  he  was 
more  determined  than  before  to  have  no  representative  assem- 
blies who  might  presume  to  interfere  with  his  royal  powers. 

On  May  29,  1686,  he  issued  to  Dongan  a  new  royal  com- 
mission with  special  instructions  in  regard  to  the  manner  in  which 
he  should  govern  the  colony,  and  suppressed  the  earlier  commis- 
sion to  the  governor.  It  reached  New  York  in  September  of 
that  year.  Under  this  commission  and  instructions  the  assembly 
was  abolished,  and  all  legislative  power  was  placed  in  the  hands 
of  the  governor  and  council,  subject  only  to  the  approval  of  the 
king  and  his  privy  council.  At  the  same  time  Dongan  was 
especially  empowered  to  erect  courts  of  law,  and  if  he  should 
consider  that  necessary,  to  appoint  judges,  justices  of  the  peace, 
and  other  officers ;  with  this  admonishment : 

"And  in  the  choice  and  nomination  of  the  members  of  our  Council  as 
also  the  Principal  Officers,  Judges,  Assistants,  Justices  &  Sherifs,  30U  are 

211 


LEGAL  AND  JUDICIAL 

always  to  take  care  that  they  bee  men  of  estate  and  abilitys  and  not  neces- 
sitous people  or  much  in  debt,  &  that  they  bee  persons  well  aflFected  to  Our 
Government."" 

His  instructions  also  included  a  specific  order  against  the 
assembly's  "charter  of  liberties"  so  offensive  to  the  duke,  who 
was  now  king: 

"You  are  to  declare  Our  Will  &  pleasure  that  ye  said  Bill  or  charter 
of  Franchises  bee  forthwith  repealed  &  disallowed,  as  y^  same  is  hereby 
Repealed,  determined  &  made  void."" 

In  April,  1686,  the  same  year  that  he  received  his  new  com- 
mission, Governor  Dongan  granted  to  the  city  of  New  York  the 
famous  charter  which  has  ever  since  borne  his  name ;  and  in  the 
following  July  he  granted  a  similar  charter  of  incorporation  to 
the  city  of  Albany.  The  Dongan  charter  provided  for  annual 
elections,  and  that  the  inhabitants  of  each  ward  of  the  city  should 
elect  one  alderman,  one  assistant  alderman,  and  one  constable; 
and  that  a  mayor,  a  recorder,  and  a  sheriff,  should  be  appointed- 
by  the  governor  and  council,  and  a  high  sheriff  be  appointed 
by  the  mayor.  Under  this  charter  the  following  officers 
were  appointed  for  the  city  of  New  York :  Nicolas  Bayard, 
mayor ;  James  Graham,  recorder ;  John  West,  town  clerk ;  Jatu 
Knight,  sheriff;    and  Peter  Delancy,  chamberlain,  or  treasurer. 

Provision  was  made  by  this  charter  to  New  York  city  that 
the  mayor  and  other  municipal  magistrates  should  be  justices 
of  the  peace  and  should  hold  a  court  of  common  pleas : 

"AND  FURTHER,  I  do  by  these  presents,  grant,  for  and  on  behalf 
of  his  most  sacred  majesty  aforesaid,  his  heirs  and  successors,  that  the 
Mayor  and  Recorder  of  the  said  city  for  the  time  being,  and  three  or 


18.  "Documents   Relative   to   the    Colonial    History   of   the    State   of 
New  York,"  by  E.  B.  O'Callaghan,  M.  D.,  LL.D.,  vol.  Ill,  p.  369. 

19.  Ibid.,  vol.  Ill,  p.  370. 

212 


HISTORY  OF  NEW  YORK 

more  of  the  Aldermen  of  the  said  city,  not  exceeding  five,  shall  be  justices 
and  keepers  of  the  peace  of  his  most  sacred  majesty,  his  heirs  and  suc- 
cessors, and  justices  to  hear  and  determine  matters  and  causes  within  the 
said  city  and  liberties,  and  precincts  thereof;  and  that  they  or  any  three  or 
more  of  them,  whereof  the  Mayor  and  Recorder,  or  one  of  them,  for  the 
time  being,  to  be  there,  shall  and  may  forever  hereafter,  have  power  and  au- 
thority, by  virtue  of  these  presents,  to  hear  and  determine  all  and  all 
manner  of  petty  larcenies,  riots,  routs,  oppressions,  extortions,  and  other 
trespasses  and  offenses  whatsoever,  within  the  said  city  of  New  York,  and 
the  liberties  and  precincts  aforesaid,  from  time  to  time,  arising  and  happen- 
ing, and  which  arise  or  happen,  and  any  ways  belonging  to  the  offices  of 
justices  of  the  peace,  and  the  correction  and  punishment  of  the  offences 
aforesaid,  and  every  of  them,  according  to  the  laws  of  England,  and  the 
laws  of  the  said  Province;  and  to  do  and  execute  all  other  things  in  the 
said  city,  liberties,  and  precincts  aforesaid,  so  fully  and  in  amply  manner, 
as  to  the  commissioners  assigned,  and  to  be  assigned,  for  the  keeping  of 
the  peace  in  the  said  county  of  New  York,  doth  or  may  belong. 

"AND  I  DO,  by  these  presents,  for  and  on  behalf  of  his  most  sacred 
majesty  aforesaid,  his  heirs  and  successors,  give  and  grant  unto  the 
aforesaid.  Mayor,  Aldermen,  and  Commonalty,  of  the  said  city  of  New 
York,  and  their  successors,  that  they  and  their  successors  shall  and  may 
have,  hold,  and  keep,  within  the  said  city,  and  liberties,  and  precincts  there- 
of in  every  week  in  every  year  forever,  upon  Tuesday,  one  Court  of  Com- 
mon Pleas,  for  all  actions  of  debt,  trespass  upon  the  case,  detinue,  ejection, 
and  other  personal  actions ;  and  the  same  to  be  held  before  the  Mayor,  Re- 
corder, and  Aldermen,  or  any  three  of  them,  whereof  the  Mayor  or  Re- 
corder to  be  one,  who  shall  have  power  to  hear  and  determine  the  same 
pleas  and  actions,  according  to  the  rules  of  the  common  laws,  and  acts 
of  general  assembly  of  the  said  province." 


Previous  to  the  granting  of  this  charter,  the  mayor's  court, 
as  formerly  under  the  Dutch,  united  the  twofold  functions  of  a 
council  or  board,  for  the  regulations  of  the  municipal  affairs  of 
the  city,  and  of  a  court  of  justice.  Legislative  and  judicial  mat- 
ters alike  came  before  the  same  body,  and  the  only  distinction 
made  between  the  two  was  that  usually  the  business  of  the  court 
was  transacted  before  the  consideration  of  municipal  affairs  was 
undertaken.  By  the  charter,  however,  the  legislative  and  judicial 
functions  of  the  mayor,  recorder  and  aldermen  were  separated, 

213 


LEGAL  AND  JUDICIAL 

and,  as  respects  their  judicial  powers,  there  was  a  further  sep- 
aration between  the  powers  they  possessed  as  criminal  magis- 
trates and  those  which  they  exercised  as  judges  in  civil  cases. 
Accordingly,  three  tribunals  were  organized,  each  composed  of 
the  same  persons,  but  each  having  duties  assigned  to  it  wholly 
distinct  and  different  from  those  pertaining  to  the  others.  These 
were  the  common  council,  the  mayor's  court,  called  in  the  char- 
ter the  court  of  common  pleas,  and  the  court  of  sessions. 

In  the  common  council  was  vested  exclusively  the  power 
of  passing  laws  and  ordinances  for  the  government  of  the  city. 
The  mayor's  court  was  for  the  trial  of  civil  actions  only.  Under 
the  provisions  of  the  charter  authorizing  the  mayor,  recorder, 
and  aldermen  to  try  criminal  offences,  a  criminal  tribunal  was 
organized,  at  first  called  the  quarter  sessions,  and,  after 
1688,  the  court  of  sessions.  By  the  act  "to  settle 
courts  of  justice"  passed  by  the  assembly  of  1683,  a  court 
of  sessions  was  established  which,  like  the  same  courts  in  the 
other  counties,  had  both  civil  and  criminal  jurisdiction.  It  was 
on  account  of  this  additional  court  in  the  city,  and  of  the  desire 
to  have  a  permanent  law  officer  attached  to  the  corporation,  who 
should  not  go  out  upon  the  annual  change  of  magistrates,  that 
the  mayor  and  aldermen  applied  to  Dongan  to  appoint  a  recorder. 
Immediately  after  the  naming  of  Graham,  this  court  was  organ- 
ized by  the  mayor,  recorder  and  aldermen,  the  recorder  presid- 
ing as  the  chief  officer.  As  this  court  sat  but  once  every  three 
months,  while  the  mayor's  court  sat  every  two  or  three  weeks, 
the  former  was  deemed  a  court  of  a  higher  grade,  in  which  at 
first  the  more  important  civil  actions  were  brought,  and  the  prin- 
cipal criminal  offences  tried.  It  continued  in  existence  three 
years,  but  by  that  time  it  was  apparent  that  the  mayor's  court 

214 


HISTORY  OF  N EfV  YORK 

and  the  oyer  and  terminer  were  sufficient  for  the  dispatch  of  the 
legal  business  of  the  city. 

The  circuit  of  the  oyer  and  terminer  was  held  in  the  city 
twice  a  year,  and  as  the  mayor's  court  had  equal  jurisdiction 
with  the  court  of  sessions,  with  the  advantage  of  sitting  more 
frequently,  there  was  comparatively  little  for  the  court  of  ses- 
sions to  do.  It  was  not,  therefore,  embraced  in  the  general  pro- 
vision made  by  the  charter,  nor  yet  was  it  rejected.  The  act 
creating  it  had  been  passed  by  the  general  assembly,  had  been 
signed  by  Dongan  before  he  granted  the  charter,  and  subsequently 
ratified  by  James.  Consequently,  it  was  not  in  Dongan's  power 
to  repeal  it,  but,  with  the  general  acquiescence  of  all  parties,  the 
court  seems  to  have  been  dropped,  and  the  quarter  sessions,  as 
a  court  of  exclusive  criminal  jurisdiction,  substituted  in  its  stead. 

Under  date  of  February  22,  1687,  Governor  Dongan  made  a 
report  upon  the  condition  of  affairs  in  the  province  to  the  Com- 
mittee of  Trade.  In  this  report  he  describes  the  courts  then  in 
existence : 

"The  Courts  of  Justice  are  most  Established  by  Act  of  Assembly  and 
they  are 

"i.  The  Court  of  Chancery  consisting  of  the  Governor  &  Council  is 
the  Supreme  Court  of  this  Province  to  which  appeals  may  be  brought  from 
any  other  Court. 

"2.  The  Assembly  finding  the  inconvenience  of  bringing  of  y©  peace, 
Sheriffs,  Constables  &  other  p^sons  concerned  from  the  remote  parts  of 
this  Government  to  New  York  did  instead  of  the  Court  of  Assizes  which 
was  yearly  held  for  the  whole  Government  of  this  Province  erect  a  Court 
of  Oyer  &  Termmer  to  be  held  once  every  year  within  each  County  for 
the  determining  of  such  matters  as  should  arise  within  them  respectively, 
the  members  of  which  Court  were  appointed  to  bee  one  of  the  two  judges 
of  this  province  assisted  by  three  justices  of  the  peace  of  that  County 
wherein  such  Court  is  held.  Which  Court  of  Oyer  &  Terminer  has  likewise 
power  to  hear  appeals  from  any  inferior  Court. 

"3.  There  is  likewise  in  New  York  &  Albany  a  Court  of  Mayor  & 
Aldermen  held  once  in  every   fortnight   from  whence   their  can  be   noe 


LEGAL  AN D  JUDICIAL 

appeal  unless  the  Cause  of  Action  bee  above  the  value  of  Twenty  pounds, 
who  have  likewise  privilege  to  make  such  by-Laws  for  ye  regulation  of 
their  own  affairs  as  they  think  fitt,  soe  as  the  same  be  approved  of  by  ye 
Govr  &  Council. 

"Their  Mayors,  recorders,  Town-Clerks  &  Sheriffs  are  appointed  by 
the  Governor. 

"4.  There  is  likewise  in  every  County  twice  in  every  year  (except  in 
New  York  where  its  four  times  &  in  Albany  where  its  thrice)  Courts  of 
Sessions  held  by  the  Justices  of  y*  peace  for  the  resp'ive  Countys  as  in 
Engld. 

"5.  In  every  Town  wt"  ye  Government  there  are  3  Commissioners 
appoint<i  to  hear  and  determin  all  matters  of  difference  not  exceeding  the 
value  of  five  pounds  which  shall  happen  within  the  respective  Towns. 

"6.  Besides  these,  my  Lords,  I  finding  that  many  great  inconveniences 
daily  hapned  in  the  managemt  of  his  Mats  particular  concerns  within  this 
Province  relating  to  his  Lands,  Rents,  Rights,  Profits  &  Revenues  by  rea- 
son of  the  great  distance  betwixt  the  Cursory  settled  Courts  &  of  the  long 
delay  which  thereon  consequently  ensued  besides  the  great  hazard  of  ven- 
turing the  matter  on  Country  Jurors  who  over  and  above  that  they  are 
generally  ignorant  enough  &  for  the  most  part  linked  together  by  affinity 
are  too  much  swayed  by  their  particular  humors  &  interests,  I  thought  fit 
in  Feb.  last  by  &  with  ye  advice  &  consent  of  ye  Council  to  settle  and  estab- 
lish a  Court  which  we  call  the  Court  of  Judicature  (Exchequer)  to  bee 
held  before  ye  Gov""  &  Council  for  the  time  being,  or  before  such  &  soe 
many  as  the  Gov'  should  for  that  purpose  authorize,  commissionat  & 
appoint  on  the  first  Monday  in  every  month  at  New  York,  which  Court 
hath  full  power  and  authority  to  hear,  try  &  determin  Suits,  matters  and 
variances  arising  betwixt  his  Maty  &  ye  Inhabitants  of  the  said  Province 
concerning  the  said  Lands,  Rents,  Rights,  Profits  &  Revenues. 

"The  Laws  in  force  are  ye  Laws  called  his  Royal  Highnesses  Laws  and 
the  Acts  of  the  General  Assembly,  the  most  of  which  I  presume  yi"  LoPs 
have  seen  &  the  rest  I  now  send  over  by  M""  Sprag  to  whom  I  refer  yf 
LoPS  in  this  point."" 

In  1688,  King  James  decided  that  it  was  essential  for  the 
carrying  out  of  his  plans  in  regard  to  the  government  of  the 
American  colonies,  that  those  of  New  England  should  be  con- 
solidated with  the  provinces  of  New  York  and  New  Jersey,  and 


20.  "New  York  Entries,"  vol.  II,  p.  i.  "Documents  Relative  to  the 
Colonial  History  of  the  State  of  New  York,"  by  E.  B.  O'Callaghan,  M. 
D.,   LL.D.,  vol.   Ill,  p.   389 

216 


HISTORY  OF  NEW  YORK 

that  this  "Territory  and  Dominion  of  New  England  in  America" 
should  be  placed  in  control  of  one  governor  general,  who  should 
have  vice-regal  authority,  as  the  representative  of  the  British 
crown.  Sir  Edmund  Andros,  who  had  preceded  Dongan  as  gov- 
ernor of  New  York,  was  appointed  to  this  exalted  position  of 
captain-general  and  governor-in-chief.  At  that  time  he  was  in 
Boston,  the  governor  of  New  England,  where  he  had  been  since 
1686.  On  August  II,  1688,  he  arrived  in  New  York  to  take  the 
government  of  that  province  from  the  hands  of  Dongan,  and 
four  days  later  his  commission  was  proclaimed  at  Elizabethtown, 
the  capital  of  the  New  Jersey  colony.  His  commission  provided 
for  his  council  as  follows : 

"And  you  are  accordingly  forthwith  to  take  upon  you  the  execution  of 
the  place  and  trust  Wee  have  reposed  in  you,  and  with  all  convenient  speed 
to  call  together  the  Members  of  the  Councill,  by  name  Joseph  Dudley,  Wil- 
liam Stoughton,  Robert  Mason,  Anthony  Brockhollz,  Thomas  Hinckley, 
Walter  Clark,  Robert  Treat,  John  Fitz  Winthrop,  John  Nicholson,  Freder- 
ick Philips,  Jervis  Baxter,  John  Pinchon,  Peter  Buckley,  Wait  Winthrop, 
Richard  Wharton,  Stephen  Courtland,  John  Usher,  Bartholomew  Gidney, 
Jonathan  Ting,  John  Hincks,  Edward  Ting,  Barnaby  Lathrop,  John  Sand- 
ford,  William  Bradford,  Daniel  Smith,  Edward  Randolph,  John  Spragg, 
John  Walley,  Nathaniel  Gierke,  John  Goxhill,  Walter  Newberry,  John 
Green,  Richard  Arnold,  John  Alborough,  Samuel  Shrimpton,  John  Young, 
Nicholas  Bayard,  John  Palmer,  William  Brown  Junior,  Simon  Linds, 
Richard  Smith,  and  John  Allen,  Esquires :  At  which  meeting  after  having 
published  our  said  Gommission  or  Letters  Patents,  constituting  you  our 
Gaptain  General  and  Governor  in  Ghief  of  our  said  Territory  and  Domin- 
ion, you  shall  after  first  taken  the  like  Oath  yourself)  administer  to  the 
members  of  our  Gouncill,  the  Oath  for  the  due  execution  of  their  places 
and  trusts.'"" 

Andros  did  not  remain  long  in  New  York  and  in  the  com- 
mand of  his  newly  acquired  "dominion  of  New  England."    Indian 


21.    "Documents   Relative   to   the   Colonial    History  of  the   State   of 
New  York,"  by  E.  B.  O'Callaghan,  M.  D.,  LL.D.,  vol.  HI,  p.  543. 

217 


LEGAL  AND  JUDICIAL 

hostilities  in  the  northern  part  of  New  England  required  his 
return  to  Boston,  and  going  from  New  York  in  October,  1688, 
he  left  the  command  of  affairs  in  the  hands  of  Lieutenant  Gov- 
ernor Francis  Nicholson,  whom  he  had  summoned  from  Boston 
for  that  purpose.  Presently  the  plans  of  King  James  for  this 
imposing  dominion  of  New  England  went  wrong.  In  Novem- 
ber, Prince  William  of  Orange  landed  in  England,  and  in  De- 
cember King  James  abandoned  his  throne,  and  within  a  month 
early  in  1689,  William  and  Mary  were  proclaimed  King  and 
Queen  of  Gfeat  Britain.  The  secession  of  Massachusetts  from 
the  provinces  consolidated  by  James  immediately  followed,  and, 
other  colonies  taking  pattern,  the  dominion  was  quickly  broken 
up. 

When  the  news  of  the  accession  of  William  and  Mary  to 
the  throne  arrived  in  New  York,  there  was  naturally  great  excite- 
ment. Lieutenant  Governor  Nicholson  was  not  a  man  for  the 
emergency,  and,  at  this  important  crisis,  Captain  Jacob 
Leisler,  who  thus  attained  prominence  in  the  histor\'  of  New 
York,  came  to  the  front.  Leisler.  claiming  to  be  acting  in  the 
interest  of  the  Protestant  King  William  and  Queen  Mary,  took 
his  action,  as  he  asserted,  to  hold  the  province  against  the  pos- 
sibility of  the  Catholic  supporters  of  King  James  seizing  upon  it 
Nicholson  betook  himself  to  England  as  soon  as  possible,  and 
the  doughty  Dutch  captain  was  temporarily  in  control  of  affairs. 
He  summoned  as  his  councilors  Peter  De  La  Noy,  Samuel  Staats, 
Hendrick  Jansen,  and  Johannes  Vermilye,  of  New  York ;  Gerar- 
dus  Beeckman,  of  Kings  county ;  Samuel  Edsall,  of  Queens 
county;  Thomas  W^illiams,  of  Westchester,  and  William  Law- 
rence, of  Orange  county.  He  issued  new  commissions  for  the 
justices,  sheriff,  military  and  other  officers,  and  those  who  held 
commissions  from  Dongan  were  ordered  to  surrender  them,  and 

218 


\ 


William  Smith 
Chief  Justice  of  New  York  and  Canada 


WILLIAM   SMITH. 

( 1728-1793). 

Jurist  and  Historian ;  author  of  "History  Province  of  Xew 
York":  Chief  Justice  of  Xew  York  under  the  Crown,  1778-83: 
Chief  Justice  of  Canada,  1796. 


HISTORY  OF  N  EfV  YORK 

give  up  their  place  to  new  appointees.  In  January,  1690,  he 
issued  several  commissions  for  courts  of  oyer  and  terminer,  with 
Peter  De  I-a  Noy  as  judge. 

Leisler's  career  was  exciting  but  short.  In  January,  1690, 
King  William  commissioned  Colonel  Henry  Sloughter  to  be  gov- 
ernor of  the  colony  as  the  succes.sor  of  Nicholson,  and  Leisler's 
title  to  the  office  of  lieutenant  governor,  if  indeed  he  had  any, 
was  not  recognized.  Major  Richard  Ingoldesby,  who  was  in 
command  of  the  troops  on  one  of  the  vessels  comprising  the 
fleet  which  took  Governor  Sloughter  to  America,  reached  New 
York  in  January,  1691,  before  his  superior.  He  proceeded  sum- 
marily against  Leisler,  whom,  with  the  persons  of  his  council,  he 
arrested  and  put  in  confinement.  On  March  20  Governor  Slough- 
ter arrived  and  took  possession  of  the  fort. 

The  councillors  who  were  appointed  for  him  were  Fred- 
erick Philipse,  Stephen  van  Cortland,  Nicholas  Bayard,  William 
Smith,  Gabriel  Minvielle,  Chidley  Brook,  William  Nicolls,  Nich- 
olas de  Meyer,  Francis  Rombout,  Thomas  Willett,  William  Pin- 
horne,  and  John  Haines.^-  From  this  board  the  so-called  Leis- 
ler men  were  left  out.  Frederick  Philipse,  Stephen  van  Cortland 
and  Nicholas  Bayard  had  been  members  of  the  council  of  Gov- 
ernor Andros;  William  Smith,  Gabriel  Minvielle,  Nicholas  de 
Meyer,  and  Francis  Rombout  had  been  nominated  by  Governor 
Dongan.  The  new  governor  at  once  issued  commissions  to  John 
Lawrence  as  mayor,  and  William  Pinhorne  as  recorder.  The 
sheriffs  of  the  various  counties  were  appointed,  and  Thomas 
Newton,  of  Boston,  who  was  reputed  to  be  the  best  lawyer  then 
in    America,    was    named    attorney-general.      In    the    following 


22.     "Documents    Relative    to    the    Colonial    History    of   the    State    of 
New  York,"  by  E.  B.  O'Callaghan,  M.  D.,  LL.D.,  vol.  Ill,  p.  685. 

219 


LEGAL  AND  JUDICIAL 

month  Newton  resigned  his  position  and  James  Graham  was 
appointed  to  succeed  him.^ 

On  March  24  a  special  commission  was  issued  for  the  court 
of  oyer  and  terminer  to  try  Leisler  and  his  associates.  The 
members  of  this  commission  were  Joseph  Dudley,  and  Thomas 
Johnson,  who  had  been  appointed  by  the  governor  to  be  judges 
in  admiralty ;  Sir  Robert  Robinson,  Colonel  William  Smith, 
Recorder  William  Pinhorne,  Mayor  John  Lawrence,  Captain 
Jasper  Hicks  of  the  frigate  Archangel,  Major  Ingoldesby,  Colonel 
John  Young  and  Captain  Isaac  Arnold.  Leisler  and  his  son-in- 
law  Milborne  were  condemned  to  death  and  hanged.  Several 
of  their  associates  were  for  a  time  held  in  prison  under  sentence 
but  were  finally  pardoned. 

The  first  period  of  juridical  history  of  New  York,  as  an  Eng- 
lish province,  was  closed  by  the  English  revolution  of  1688,  fitly 
enough  characterized  as  the  "happy  revolution"  in  England  and 
for  Englishmen  living  there,  but  full  of  disappointments  to  Eng- 
lish subjects  living  in  distant  America.  It  was  the  Englishmen 
at  home  who  gained  new  guarantees  of  constituted  rights, 
enlarged  freedom  from  arbitrary  power,  and  security  against 
unrestrained  prerogative.  As  for  Englishmen  in  the  colonies, 
their  relation  to  the  crown  remained  what  it  always  had  been, 
which  was  according  to  King  William's  first  chief-justice  of  the 
king's  bench  Holt,  that  "their  law  is  what  the  king  pleases"; 
for,  according  to  Granville, — a  member  of  his  privy  council, — 
"the  governor's  instructions  are  the  law  of  the  land,  for  the  king 
is  the  legislator  of  the  colonies." 

By  his  commission  from  William  and  Mary,  Sloughter  was 
authorized  to  convene  a  representative  assembly. 


23.     "Colonial  Minutes",  vol.  VI,  pp.  5-15-29. 

220 


HISTORY  OF  N EfV  YORK 

"And  we  do  hereby  give  @  grant  unto  you  full  power  and  authority,  with 
the  advice  @  consent  of  our  said  Councill  from  time  to  time  as  need  shall 
require,  to  summon  &  call  generall  Assemblies  of  the  Inhabitants  being 
Freeholders  within  your  Government,  according  to  the  usage  of  our  other 
plantations  in  America.  And  our  Will  and  Pleasure  is  that  the  persons 
thereupon  duely  elected  by  the  Mayor  part  of  the  Freeholders  of  the  re- 
spective Countys  and  places  and  so  returned  and  having  before  their  sit- 
ting taken  the  oaths  of  Allegiance  and  Supremacy  and  the  Test — which 
you  shall  Commissionate  fit  persons  under  our  seal  of  New  York  to  ad- 
minister, and  without  taken  which  none  shall  be  capable  of  sitting  though 
elected — shall  be  called  and  held  the  Gen*^!  Assembly  of  that  our  Province 
and  the  Territories  thereunto  belonging.  And  that  you,  the  said  Henry 
Sloughter,  by  @  with  the  consent  of  our  said  Councill  and  Assembly,  or 
the  major  part  of  them,  respectively  have  full  power  and  authority  to 
make  constitute  and  ordaine  Laws  Statutes  @  ordinances  for  ye  republique 
Peace,  welfare,  and  good  Government  of  our  said  Province  and  of  the  peo- 
ple @  Inhabitants  thereof,  and  such  others  as  shall  resort  thereto  &  for 
the  benefit  of  us  our  Heirs  and  Successors.  Which  said  Laws,  Statutes, 
and  Ordinances  are  to  be  (as  near  as  may  be)  agreeable  unto  the  Laws 
and  Statutes  of  this  our  kingdom  of  England.  Provided  that  all  such 
Laws,  Statutes  &  Ordinances,  of  what  nature  or  Duration  soever,  be  within 
three  months,  or  sooner,  after  the  making  thereof,  transmitted  to  us,  un- 
der our  seal  of  New  York  for  our  Approbation  or  Disallowance  of  the 
same,  as  also  Duplicates  thereof  by  the  next  conveyance.  And  in  case  any 
or  all  of  them,  being  not  confirmed  by  Us  Shall  at  any  time  be  disallowed 
@  not  approved,  and  so  signified  by  Us,  our  Heirs,  &  Successors,  under 
our  or  their  Sign  Mutual  and  Signet,  or  by  order  of  our  or  their  Privy 
Council  unto  you  the  said  Henry  Sloughter,  or  to  the  Commander  in  Chief 
of  the  said  Province  for  y^  time  being,  then  such  and  so  many  of  them  as 
shall  be  soe  disallowed  and  not  approved  shall  from  thenceforth  cease,  de- 
termine @  become  utterly  voyd  and  of  none  effect,  any  thing  to  the  con- 
trary thereof  notwithstanding.'"* 

On  April  6,  1691,  the  assembly  was  summoned  to  meet,  and 
this  was  "the  first  time  the  popular  representatives  of  the  prov- 
ince had  convened  under  direct  authority  of  the  crown,"  their 
meetings  previously  having  been  by  summons  by  the  governor  of 
the  province,  as  the  representatives  of  the  ducal  proprietor.  The 
members  of  this  assembly  were  James  Graham,  William  Mer- 


24.    "Documents   Relative   to   the    Colonial    History   of   the   State   of 
New  York",  by  E.  B.  O'Callaghan,  M.  D.,  LL.D.,  vol.  Ill,  p.  624. 

221 


LEGAL  AND  JUDICIAL 

ritt,  Jacobus  Van  Cortland  and  Johannes  Kip,  for  New  York; 
Dierck  Wessells  and  Levinus  Van  Schaick,  for  Albany ;  Henry 
Beeckman  and  Thomas  Carton  for  Ulster  and  Dutchess  counties ; 
John  Pell  for  Westchester  county ;  Elias  Duksberry  and  John 
Dally  for  Richmond  county ;  Henry  Pierson  and  Matthew  How- 
ell for  Suffolk  county ;  John  Bound  and  Nathaniel  Pearsall  for 
Queens  county ;  Nicholas  Stillwell  and  John  Poland  for  Kings 
county,  and  Killaen  Van   Rensselaer  for  Rensselaerswyck.^ 

The  law-making  power  was  vested  not  in  this  body,  how- 
ever, but  in  the  governor,  acting  with  the  consent  of  the  council 
and  a  majority  of  the  assembly,  subject  of  course  to  the  approval 
of  the  sovereign.  To  the  end  of  the  colonial  period,  the  enact- 
ing clause  of  all  bills  was,  "Be  it  enacted  by  his  Excellency  the 
Governor,  by  and  with  the  consent  of  the  Council  and  Assembly, 
and  by  the  authority  of  the  same."  Some  very  notable  legisla- 
tion was  effected,  however,  by  this  assembly.  It  re-enacted,  with 
slight  variations  of  language,  some  of  the  laws  passed  by  the 
assembly  of  1683,  one  of  which,  entitled  "An  act  for  declaring 
what  are  the  rights  and  privileges  of  their  Magesties'  subjects 
inhabiting  within  this  province  of  New  York,"  does  not  differ 
greatly  from  the  "Charter  of  Libertyes  and  privileges'  of  Don- 
gan's  assembly ;  but  it  met  the  untoward  fate  of  its  original,  and 
was  vetoed  by  the  king,  six  years  after  its  passage. 

But  one  of  its  most  important  works  was  providing  a  system 
of  county  government  by  officers  (supervisors)  chosen  by  the 
electors  of  the  several  towns,  and  a  county  treasurer,  elected  by 
the  voters  of  the  county  at  large.  Though  this  scheme  of  county 
government  was  abolished  in  1701,  it  was  re-established  in  June, 


25.  "Documentary  History  of  the  State  of  New  York,"  by  E.  B. 
O'Callaghan,  M.  D.,  LL.D.,  vol.  II,  p.  250.  "History  of  New  York"  by 
William   Smith,   vol.    I,   p.    112. 


222 


HISTORY  OF  N EW  YORK 

1703,  and  has  continued  ever  since  without  material  modification. 
Counties  in  New  England  and  in  the  Southern  States  have  never 
been  much  more  than  mere  geographical  expressions,  without 
any  corporate  existence  or  system  of  local  administration.  The 
New  York  supervisor  system  of  local  government,  thus  created, 
"was  destined  to  have  a  profound  influence  on  the  subsequent 
development  of  local  administration  in  the  United  States."^* 

One  of  the  first  proceedings  of  this  Assembly  was  to  adopt 
the  following  resolution : 

"Upon  an  information  brought  into  this  House  by  several  Members 
of  the  House,  declaring,  That  the  several  Laws  made  formerly  by  the 
General  Assembly,  and  his  late  Royal  Highness  James  Duke  of  York,  &c, 
and  also  the  several  Ordinances,  or  reputed  Laws,  made  by  the  preceding 
Governors  and  Councils  for  the  Rule  of  their  Majesties  Subjects  within 
this  Province,  are  reported  amongst  the  People,  to  be  still  in  force : 

"Resolved,  Neinine  Contradicentc,  That  all  the  laws  con- 
sented to  by  the  General  Assembly,  under  James  Duke  of  York,  and  the 
Liberties  and  Privileges  therein  contained  granted  to  the  People,  and  de- 
clared to  be  their  Rights  not  being  observed  and  not  ratified  and  approved 
by  his  Royal  Highness,  nor  the  late  King,  are  null,  void,  and  of  none  ef- 
fect. And  also  the  several  Ordinances  or  reputed  laws  made  by  the  late 
Governors  and  Councils,  being  contrary  to  the  Constitution  of  England, 
and  the  Practice  of  the  Government  of  their  Majesties  other  Plantations  in 
America,  are  likewise  null,  void,  and  of  none  effect  nor  force  within  this 
Province."" 

On  May  6,  1691,  the  assembly  passed  "An  act  for  the  Estab- 
lishing courts  of  judicature  for  the  Ease  and  benefitt  of  each 
respective  Citty  Town  and  County  within  this  Province."^  This 
act  changed  the  town  courts  into  courts  of  justices  of  the  peace, 


26.  "Comparative  Administrative  Law,"  by  Frank  J.  Goodnow,  vol. 
I,  p.  168. 

27.  Journal  of  the  New  York  Assembly,  p.  8. 

28.  This  act  is  chapter  four  of  Livingston  &  Smith  and  Van  Schaack, 
where  the  title  only  is  printed.  It  is  printed  in  full  in  Fowler's  Brad- 
ford, p.  2.  The  title  only  is  printed  in  Baskett,  p.  8.  For  note  in  reference 
to  this  act  see  Fowler's  Bradford,  p.  CV.  The  act  is  also  printed  in  full 
in  "Colonial  Laws  of  New  York",  vol.  T,  pp.  226-231. 

223 


LEGAL  AND  JUDICIAL 

created  a  court  of  common  pleas  for  each  county,  except  the 
counties  of  New  York  and  Albany,  to  be  held  by  a  judge  com- 
missioned by  the  governor,  and  courts  of  general  sessions  for 
each  of  the  counties ;  also  it  made  for  a  court  of  chancery  the 
same  provisions  that  had  been  made  by  the  act  of  1683.  But 
the  most  important  feature  in  the  act  was  the  creation  of  a 
supreme  court.  It  declared  that  a  supreme  court  of  judicature 
should  be  established  in  the  city  of  New  York  to  be  composed 
of  a  chief  justice  and  four  assistant  justices,  to  be  appointed  by 
the  governor,  and  that  it  should  have  cognizance  of  all  actions, 
civil,  criminal  or  mixed,  as  fully  and  amply  as  the  courts  of 
king's  bench,  common  pleas  or  exchequer  in  England,  and  should 
have  power  to  establish  rules  and  ordinances,  and  to  regulate 
the  practice  of  the  court.  Also,  courts  of  general  sessions  of  the 
peace  were  organized  as  criminal  tribunals,  distinct  and  separate 
from  the  courts  of  common  pleas,  which  were  courts  for  the 
trial  of  civil  actions  only.  In  all  the  counties  except  New  York 
and  Albany,  the  courts  of  general  sessions  were  held  twice  a  year ; 
in  Albany,  three  times  a  year ;  and  in  the  city  of  New  York, 
four  times  a  year.  The  civil  jurisdiction  of  the  court  of  com- 
mon pleas  was  essentially  the  same  as  that  of  the  former  court 
of  sessions ;  and  the  term  of  the  court  began  on  the  day  after 
the  sitting  of  the  general  sessions,  the  terms  of  both  courts  being 
limited  to  two  days  each.  By  this  act  the  court  of  oyer  and  ter- 
miner was  abolished,  but,  in  conformity  to  the  organization  of 
the  courts  of  Westminster,  its  name  was  retained,  to  designate 
the  criminal  branch  of  the  supreme  court. 

Governor  Sloughter  did  not  long  survive  his  arrival  in 
America.  In  July,  four  months  after  he  had  landed  on  Man- 
hattan Island,  he  was  suddenly  taken  by  illness  and  died  within 
a  few  hours.    In  the  emergency  the  provincial  council  summoned 

224 


M 


Joseph  Dudley 


JOSEPH  DUDLEY. 

(1647-1720). 

President  of  New  England,  1686;  Chief  Justice  of  Massa- 
chusetts, 1687-89:  Chief  Justice  of  New  York,  1690-93;  Lieu- 
tenant Governor  Isle  of  Wight,  1694- 1702;  Member  of  British 
Parliament,  1701 ;    Governor  of  Massachusetts,  1702-15. 


HISTORY  OF  N EfV  YORK 

Major  Richard   Ingoldesby  and   made  him   acting  governor  of' 
New  York,  until  a  governor  should  be  appointed  by  the  King. 
The  administration  of  Ingoldesby  extended  to  a  little  over  thir- 
teen months,  but  was  marked  by  no  event  of  special  importance. 

On  August  29,  1692,  Colonel  Benjamin  Fletcher,  v^^ho  had 
been  commissioned  as  governor  to  succeed  Sloughter,  arrived 
and  took  control  of  aflfairs.  The  commission  of  Fletcher  was 
almost  identical  with  that  held  by  Sloughter.  In  this  commission 
he  was  empowered  to  erect  courts  of  judicature  and  appoint 
justices  with  the  advice  and  consent  of  the  council,  but,  in  the 
private  instructions  which  were  issued  to  him,  he  was  admon- 
ished to  create  no  courts  or  offices  of  judicature,  not  already 
established.  The  members  of  Fletcher's  council  were  Chief-Jus- 
tice Joseph  Dudley,  Frederick  Philipse,  Steven  Van  Cortlandt, 
Nicholas  Bayard,  William  Smith,  Gabriel  Minville,  Chidley 
Brooks,  William  Nichols,  Thomas  Willett,  William  Pinhorne, 
Thomas  Johnson,  Peter  Schuyler,  John  Lawrence,  Richard  Town- 
ley  and  John  Younge.  A  year  later  Caleb  Heathcote,  who  later 
became  a  prominent  figure  in  New  York's  history,  took  the  seat 
of  Dudley  in  the  council. 

Appended  to  a  list  of  all  the  officers  in  the  civil  service  of 
the  province  on  April  20,  1693,  made  by  Matthew  Clarkson,  the 
secretary  is  ''An  Account  of  all  Establishments  of  Jurisdictions 
within  this  Province,"  as  follows: 

"Single  Justice.  Every  Justice  of  the  Peace  hath  power  to  determine 
any  suite  or  controversy  to  the  value  of  forty  shillings. 

"Quarter  Sessions.  The  Justices  of  the  Peace  in  quarter  Sessions  have 
all  such  powers  and  authorities  as  are  granted  in  a  Commission  of  ye 
Peace  in  England. 

"County  Court.  The  County  Court  or  common  Pleas  hath  cognizance 
of  Civil  accons  to  any  value,  excepting  what  concerns  title  of  land ;  and  noe 
accon  can  be  removed  from  this  Court  if  the  damage  be  under  twenty 
pounds. 

2.5 


LEGAL  AND  JUDICIAL 

"Mayor  &  Aldermen.  The  Court  of  Mayor  and  Aldermen  hath  the 
same  power  with  the  County  Courts. 

"Supreme  Court.  The  Supreme  Court  hath  the  power  of  Kings 
Bench,  Common  Pleas  &  Exchequer  in  England,  and  noe  accon  can  be 
removed  from  this  Court  under  fioo. 

"Chancery.  The  Governour  and  Councill  are  a  Court  of  Chancery, 
and  have  the  powers  of  the  Chancery  in  England,  from  whose  Sentence  or 
decree  nothing  can  be  removed  under  £300. 

"Prerogative  Court.  The  Governour  discharges  the  place  of  Ordinary 
in  granting  administracons  and  proveing  Wills  &  The  Secretary  is  Regis- 
ter. The  Govern^  is  about  to  appoint  Delegates  in  the  remoter  parts  of 
the  government  with  Supervision  for  looking  after  intestates  estates  and 
providing  for  orphans. 

"Court  Marshall.  The  Govern"".  Hath  established  a  Court  Martiall 
att  Albany  whereof  Major  Rich^  Ine;oldesby  is  President  and  Robert  Liv- 
ingston Judge  Advocate,  who  with  the  other  commissionated  Captains  att 
Albany  have  power  to  exercise  Martiall  Law  being  a  frontier  garrison  and 
in  actuall  warr. 

"Admiralty.  Their  Majesties  reserve  the  appointment  of  a  Judge, 
Register,  and  Marshall." 

On  the  death  of  Queen  Mary,  in  1694,  King  Willam  suc- 
ceeded to  the  sole  possession  of  legal  authority,  and  he  in  1697, 
issued  a  commission  to  Richard  Coote,  the  Earl  of  Bellomont,  to 
succeed  Colonel  Fletcher  as  governor  of  the  provinces  of  New 
York,  Massachusetts  and  New  Hampshire,  in  1695.  Bellomont 
did  not  arrive  in  New  York  until  1698,  and  Fletcher  continued  to 
exercise  the  duties  of  the  position  until  his  successor  had  come. 
With  Bellomont  came  John  Nanfan  as  lieutenant-governor,  who 
was  authorized  to  exercise  all  the  powers  stated  in  the  governor's 
commission  in  case  of  the  death  or  absence  of  the  latter. 

By  successive  enactments  of  the  assembly,  these  courts  were 
continued  in  existence  until  1698.  In  that  year  the  act  under 
which  the  courts  had  been  last  renewed  expired.  Before  action 
could  be  taken  on  this  matter  the  assembly  was  dissolved  by  Lord 


29.    "Documents   Relative   to   the   Colonial    History   of   the   State   of 
New  York",  by  E.  B.  O'Callaghan,  M.  D.,  LL.D.,  vol.  IV,  p.  28. 

226 


HISTORY  OF  NEW  YORK 

Bellomont.  In  the  following  year  the  assembly  met  again  and 
passed  a  bill  for  the  continuation  of  the  courts,  but  attached  to  it 
certain  amendments  which  were  obnoxious  to  the  governor.  Al- 
ready controversy  concerning  the  respective  rights  of  the  gover- 
nor and  assembly  in  regard  to  establishing  these  courts,  had 
reached  a  critical  point.  Bellomont  now  believed  that  the  amend- 
ments which  the  assembly  had  made  to  the  previously  existing 
law  were  put  forth  as  a  political  move  for  the  purpose  of  embar- 
rassing him,  by  compelling  him  to  reject  the  laws  and  thereby  be 
responsible  for  the  province  being  without  courts  in  the  future. 
Promptly  he  refused  his  assent  to  the  law,  which  consequently 
was  null  and  void,  and,  without  taking  further  action,  the  assem- 
bly adjourned. 

Now  the  colony  was  without  a  judiciary  system,  and  the  sit 
uation  was  serious.  In  the  royal  commissions  to  all  governors  oi 
the  colony  there  had  been  a  provision  authorizing  them  to  estab- 
lish courts.  This  provision  was  in  Bellomont's  commission,  as 
it  had  been  in  those  of  his  predecessors.  In  the  present  emer- 
gency the  governor  appealed  to  the  chief  justice,  William  Smith, 
and  the  attorney-general,  James  Graham,  for  their  opinions  as 
to  the  course  he  should  pursue.  They  advised  him  that  the  king 
himself  had  no  such  power  of  establishing  courts  without  the 
concurrence  of  parliament,  and  that  consequently  he  could  not 
delegate  to  his  governors  powers  which  he  did  not  himself  pos- 
sess. But  Bellomont,  when  he  found  that  the  opinions  of  his 
legal  advisors  were  against  his  wishes,  rejected  them  upon  the 
ground  that  he  had  little  confidence  in  either  Smith  or  Graham, 
because  neither  of  them  were  lawyers,  notwithstanding  the  fact 
that  they  held  judicial  and  legal  offices.  He  persisted  in  holding 
that  this  power  of  establishing  courts  was  a  prerogative  of  the 
king,  and  therefore  was  rightfully  delegated  to  his  representatives 

227 


LEGAL  AND  JUDICIAL 

or  governors.  Acting  upon  this  assumption,  on  May  15,  1699,  he, 
with  the  concurrence  of  his  council,  published  an  ordinance  re- 
establishing the  courts  as  they  had  existed  under  the  assembly 
act  of  1692  and  the  subsequent  assembly  continuations.'" 

The  general  state  of  the  law  of  the  province,  at  the  close 
of  the  seventeenth  century  was  well  defined  by  William  Smith, 
chief-justice  of  the  supreme  court,  in  a  report  to  Lord  Bellomont, 
written  on  the  twenty-sixth  of  November,  1700.  In  that  docu- 
ment, Chief  Justice  Smith  said  : 

"That  the  Courts  of  Law  in  this  province  establish'd  are  the  Corpor- 
ation Courts,  who  derive  their  powers  from  Charters  granted  from  several 
persons  who  have  heretofore  commanded  this  province.  And  the  provincial 
courts,  which  are  authorized  from  an  ordinance  of  Your  Excellcy  and 
Councill,  in  virtue  of  the  powers  given  you  by  His  Maj'^es  letters  pattents, 
under  the  great  Seal  of  England,  and  am  humbly  of  the  opinion  that  the 
coppyes  of  such  Charters  and  of  the  Ordinances  aforesaid  would  best  man- 
ifest to  their  Excellcles  by  what  rules  and  methods  we  are  govern'd  in  all 
trylls  which  is  the  common  law  of  England,  and  with  statutes  there  made 
declarative  thereof,  and  near  as  may  be  according  to  the  manner  and 
methods  of  His  Majes^ys  Courts  at  Westminister  Hall,  except  in  the 
Courts  of  Appeals,  which  consists  of  the  Governour  or  Councillor  in  Chief, 
and  his  Majesty's  Councill  for  the  time  being,  and  is  constituted  by  His 
Majestys  letters  pattents." 

This  report  points  out  very  clearly  what  English  statutes 
had  been  recognized  by  the  courts  as  in  force  in  New  York  up  to 
that  time,  for  the  chief  justice  refers  to  them  as  those  statutes 
declarative  of  the  common  law.  This,  it  will  be  observed,  ac- 
corded with  the  rule  that,  in  provinces  which  England  acquired 
by  conquest,  general  English  statutes  were  binding  only  when 
they  were  in  conformance  of  the  common  law,  and  had  been 
made  before  the  conquest. 


30.    This  ordinance  is  in  the  appendix  of  vol.  II  of  the  Revised  Laws, 
of  1813,  No.  5. 

228 


CHAPTER  VI 
In  the  Colonial  Peric© 


1 


I 


Caleb    Heathcote 


!lff! 


CALEB  HEATHCOTE. 

(1665-1721). 

Soldier  and  Jurist;  Mayor  of  New  York;  Commander 
in  Chief  of' Colonial  Militia;  Surveyor  General;  Judge  of  Ad- 
miralty Court. 


CHAPTER  VI 

In  the  Colonial  Period 

1700 — 1778 

JUDICIAL  STATUS  OF  THE  NEW  YORK  PROVINCE — BEGINNING  OF 
AMERICAN  JURISPRUDENCE — DISCUSSION  OF  THE  KING'S  PRE- 
ROGATIVE A  PRIME  ISSUE  OF  THE  CENTURY — POPULAR  AND 
PROFESSIONAL   OPPOSITION   TO   THE   COURT   OF   CHANCERY  AND 

THE  EXCHEQUER  COURT CONTESTS  BETWEEN  THE  ASSEMBLIES 

AND   THE  GOVERNORS — CLOSING   OF  THE   COURTS   BY   THE  REV- 
OLUTION— THE   COLONIAL   BAR. 

Even  before  the  opening  of  the  eighteenth  century,  the 
struggle  began  for  freedom  in  the  New  York  colony, — the  strug- 
gle which  ultimately  culminated  in  the  Revolution  of  1776.  We 
should  be  compelled  to  go  back  to  the  time  of  the  Dutch  rule  in 
New  Amsterdam  to  find  the  first  germs  of  what  ultimately 
became  an  intense  popular  desire  to  be  free  from  the  dominance 
of  far-distant  foreign  control.  In  the  time  of  Kieft  and  Stuyve- 
sant,  as  has  been  pointed  out  on  the  preceding  pages,  there  was 
manifested  the  same  spirit  that  afterwards  found  fuller  expres- 
sion during  the  administrations  of  the  English  governors.  From 
the  time  of  Cornbury  on,  this  feeling  grew  in  intensity  year  by 
year.  It  was  always  latent,  ready  to  exhibit  itself  upon  the 
slightest  provocation.  Now  and  then  it  broke  forth  in  a  most 
pronounced  and  positive  manner,  and  occasionally  scarcely  fell 
short  of  actual  rebellion. 

In  the  beginning,  this  struggle  was  less  a  popular  movement 

231 


LEGAL  AND  JUDICIAL 

than  an  acute  rivalry  for  power  between  the  leaders  of  the  fac- 
tions which  had  grown  up  in  the  last  quarter  of  the  seventeenth 
century.  Generally,  the  masses  had  not  yet  come  to  concern 
themselves  much  with  the  question,  which,  when  they  considered 
it  at  all,  they  must  have  looked  upon  as  of  comparatively  little 
pratical  importance.  The  revolution  was  not  a  popular  uprising 
which  sought  leaders.  On  the  contrary,  the  movement  was  one 
which  went  from  the  head  downward.  Those  who  led  the 
opposing  factions,  seeking  to  gain  popular  support  for  their 
respective  views,  gradually  educated  the  people  to  the  point  of 
revolutionary  protest  and  action.  Appealing  to  the  inherent 
Anglo-Saxon  lover  of  liberty,  the  leaders  of  what  became  the 
democratic  or  popular  side,  gradually  formulated  the  issue  out 
of  which  grew  the  revolution ;  these  were  the  Morrisses,  the 
Coldens,  the  Alexanders,  and  others  of  that  stamp.  Against  them 
were  arrayed  the  DeLanceys,  and  those  who  were  connected  with 
that  family  in  marriage  or  in  social  relations. 

For  half  a  century,  at  least,  most  of  this  contest  centered  in 
the  assembly  and  in  and  around  the  courts.  In  the  assembly 
it  took  form,  on  the  part  of  the  opposition,  principally  on  two 
points.  First,  were  the  rights  and  privileges  of  the  legislature 
in  regard  to  raising  revenue,  and  voting  expenditures  for  the 
support  of  the  colonial  government  and  for  internal  affairs  gen- 
erally. Second,  though  not  in  any  respect  second  in  importance, 
was  the  question  of  the  exercise  of  royal  prerogative  in  estab- 
lishing courts  without  legislative  authority,  particularly  the 
supreme,  exchequer  and  chancery  courts.  Upon  this  latter  issue, 
in  and  out  of  the  assembly,  the  contention  between  the  people 
and  the  representatives  of  the  crown  in  the  persons  of  the  gov- 
ernor and  members  of  his  council,  was  strongly  fixed  and  relent- 
lessly carried  on.    This  matter  was  constantly  before  the  assem- 

232 


Th.  Johnson 


THOMAS  JOHNSON. 

Jurist,   Judge   Admiralty    Court;   Justice    Supreme    Court, 
1691 ;  Member  Colonial  Council,  1692. 


HISTORY  OF  NEfV  YORK 

bly ;  few  sessions  were  held  when  resolutions  and  acts  were  not 
passed,  voicing  the  opinions  of  the  popular  representatives,  that 
the  setting  up  of  courts,  except  by  legislation,  endangered  the 
liberties  of  the  people.  Many  of  the  important  cases  in  the  courts 
during  this  period  were  made  the  opportunity  for  discussion 
of  the  mooted  question.  In  the  arena  of  the  courts  the  protes- 
tants  against  the  prerogative  of  the  king  never  failed  to  plead  the 
lack  of  jurisdiction  of  the  governor  or  of  the  court  appointed  by 
him,  and  vehemently  to  declaim  against  such  encroachments  upon 
the  rights  of  the  people  who  were  still  EngHsh  citizens  living 
under  an  English  constitution.  Thus  the  history  of  the  higher 
courts,  during  this  entire  period,  is  in  a  large  and  significant  sense  a 
political  history  of  the  time. 

For  more  than  a  generation  the  animosities  engendered  by 
the  popular  uprising  in  New  York  City  after  Andros  had  fallen 
from  power,  upon  the  accession  of  King  William  to  the  throne 
in  1689.  continued  to  vex  the  body  politic,  to  divide  families,  to 
set  neighbors  in  opposition  to  each  other,  and  to  be  a  constant 
source  of  trouble  to  the  successive  colonial  governors.  The  hang- 
ing of  Jacob  Leisler  fanned  the  embers  of  political  hatred  into 
flames,  and  the  people  aligned  themselves  into  two  parties — the 
Leislerians  and  the  anti-Leislerians.  For  the  most  part,  the 
Leislerian  faction  constituted  the  popular  or  democratic  element, 
while  the  anti-Leislerians  were  the  aristocrats,  although  that  line 
of  separation  was  not  clearly  marked  or  rigidly  maintained. 
Generally  speaking,  however,  it  was  felt  that  the  community  was 
practically  thus  divided.  The  governors  could  not  escape  the 
influence  of  this  condition  of  things.  As  they  followed  each 
other  at  short  intervals,  they  were  seized  upon  by  one  or  the  other 
of  the  two  parties  and  manipulated  accordingly, — a  sort  of  see- 
saw game  of  politics. 

2.33 


LEGAL  AND  JUDICIAL 

Sloughter  and  Fletcher  had  been  almost  completely  under 
the  influence  of  the  aristocratic,  or  anti-Leislerian  party.  On  the 
contrary,  Bellomont,  the  best  governor  since  Dongan,  was  pre- 
eminently just  and  impartial.  If  anything,  he  was  favorable  to 
the  Leislerians,  although  in  his  actions  he  was  never  unfairly 
committed  to  them.  His  death  opened  the  way  to  a  succession 
of  events  in  this  factional  quarreling  in  the  community  which 
culminated  in  another  important  criminal  trial,  second — in  inter- 
est and  in  the  possibility  of  grave  results  resulting  from  it — only 
to  that  of  Leisler  ten  years  previously.  In  its  finality  only  did 
it  fall  short  of  the  tragedy  of  the  affair  of  169 1.  The  defendant 
in  the  case  was  Nicholas  Bayard,  Leisler's  conspicuous  opponent, 
his  inveterate  enemy,  who  had  done  more  than  any  other  indi- 
vidual to  persuade  Governor  Sloughter  to  consent  to  the  hang- 
ing of  the  German  captain  who  had  assumed  an  authority  that 
unfortunately  for  himself  he  was  unable  to  maintain. 

Immediately  after  the  news  had  arrived  in  New  York  that 
Lord  Cornbury  had  been  appointed  to  succeed  the  Earl  of  Bello- 
mont, the  anti-Leislerians  in  the  community  were  again  moved  to 
activity.  The  personal  hatred  which  possessed  Nicholas  Bayard 
and  others  who  had  suffered  at  the  hands  of  Leisler,  had  not  yet 
been  appeased.  Bayard  especially  was  still  smarting  under  the 
recollection  of  the  indignities  which  had  been  heaped  upon  hint 
In  the  change  of  administration  he  saw  his  opportunity,  and, 
promptly  acting,  he  had  addresses  drawn  up  for  signatures 
to  present  to  the  king,  to  parliament  and  to  Cornbury,  in  relation 
to  the  events  in  New  York  of  the  preceding  decade.  In  the  ad- 
dress to  his  majesty  the  king  he  declared  "the  late  differences 
were  not  grounded  on  a  regard  for  his  interests,  but  were  the  cor- 
rupt designs  of  those  who  had  laid  hold  of  the  opportunity  to  en- 
rich themselves  by  the  spoils  of  their  neighbors."    The  petition.to 

234 


HISTORY  OF  NEW  YORK 

parliament  set  forth  that  Leisler  and  his  adherents  had  oppressed 
and  imprisoned  people  without  just  cause,  had  plundered  them  of 
their  possessions,  and  had  compelled  them  to  flee  from  the  pro- 
vince, notwithstanding  they  had  been  well  affected  to  the  Prince 
of  Orange.  The  addresses  accused  Bellomont  of  malfeasance  in 
office,  pointing  out  that  he  had  appointed  as  sheriffs  indigent  men 
who,  in  the  discharge  of  their  official  duties,  had  returned  to  the 
assembly  as  members  those  who  were  unduly  elected.  It  was  also 
charged  that  Bellomont  had  put  in  his  council  men  who  were 
simply  his  tools  and  who  had  acted  in  support  of  his  purposes, 
instead  of  being  faithful  servants  of  the  crown.  The  addresses 
questioned  the  authority  of  the  acts  of  the  late  assemblies,  and 
in  this  connection  attacked  the  lieutenant  governor  and  chief 
justice,  charging  that  the  house  had  bribed  them, — the  one  to  pass 
desired  bills,  and  the  other  to  defend  the  legality  of  the  assembly 
proceedings.  Alderman  Jonathan  Hutchins,  a  tavern  keeper,  was 
a  conspicuous  supporter  of  Bayard,  and  actively  engaged  in  the 
work  of  securing  signatures  for  these  addresses. 

Lieutenant  Governor  John  Nanfan,  who  was  in  Barbadoes 
when  Bellomont  died,  returned  quickly  to  New  York  and  assumed 
the  governorship  until  Lord  Cornbury  should  arrive.  Naturally 
he  was  incensed  at  these  proceedings,  and,  in  January,  1702,  he 
caused  the  arrest  of  Bayard,  and  locked  him  up  in  jail  upon  the 
accusation  of  treason.  Alderman  Hutchins  was  ordered  to  de- 
liver up  the  addresses  which  were  in  his  possession,  and,  upon 
his  refusal  to  accede  to  this  demand,  was  also  put  in  jail.  In 
1691,  in  the  act  recognizing  King  William  and  Queen  Mary, 
which  was  passed  by  the  assembly  of  that  year,  was  a  clause, 
then  aimed  at  the  Leisler  party,  which  had  been  prepared  by 
Nicholas  Bayard.     It  provided  that, 

235 


LEG.iL  AND  JUDICIAL 

"whatsoever  person  or  persons  shall,  by  any  manner  of  ways,  or  upoa 
any  pretence  whatsoever,  endeavor  by  force  of  arms  or  otherwise  to  dis- 
turb the  peace,  good  and  quiet,  of  their  majesties'  government,  as  it  is  now 
established,  shall  be  deemed  and  esteemed  rebels,  and  traitors  unto  their 
majesties,  and  incur  the  pain,  penalties  and  forfeitures  as  the  laws  of  Eng- 
land have  for  such  offences,  made  and  provided.' 

\ 
Under  this  measure.  Bayard  was  brought  to  trial  after  he 

had  lain  in  jail  for  nearly  a  month.  A  commission  of  oyer  and 
terminer  was  issued  to  William  Atwood,  chief  justice,  and  Abra- 
ham De  Peyster  and  Robert  Walters,  puisne  judges.  Attorney 
General  Broughton,  who  had  come  over  with  Atwood,  the  chief 
justice,  was  not  at  all  in  sympathy  with  the  proceedings,  for  he 
did  not  consider  that  any  crime  had  been  committed.  As  he  re- 
fused to  appear,  Thomas  Weaver,  who  was  collector,  and  a  mem- 
ber of  the  council,  was  appointed  to  be  solicitor  general  to  con- 
duct the  case.  The  grand  jury  which  found  indictment  against 
Bayard  was  made  up  principally  of  Dutch  citizens.  Its  members 
were  Johannes  De  Peyster,  David  Provoost,  Martin  Clock,  Leen- 
dert  Huggin,  Barent  Reynders,  Johannes  Van  der  Speigell,  Jo- 
hannes Outman,  Peter  Van  Telburgh,  Johannes  Geisen,  Abra- 
ham Kettletas.  Hendrick  Gillisen,  Aryen  Hoogilant,  William 
Jackson,  John  Corbett,  Johannes  Van  Cortlandt,  Caleb  Cooper, 
John  \'an  Hoorn,  Burger  Myneers,  Gerrit  Van  Hoorn,  Jacobus 
De  Key.  Abraham  Kipp  and  Johannes  \^an  Zandt. 

No  authentic  record  of  the  proceedings  in  this  case  is  in 
existence.  No  notes  were  taken  of  it  except  by  the  solicitor  and 
the  counsel  for  the  defendant,  and  the  only  knowledge  that  later 
generations  have  had  of  it  has  been  derived  from  desultory 
memoranda  made  by  private  individuals  who  were  present  at  the 
trial,  which  were  afterward  gathered  and  printed  in  the  petition 
of  Bayard  for  a  redress.  Bayard  was  found  guilty  of  treason  as 
charged  in  the  indictment,  and,  on  March  16,  Chief  Justice  At- 

236 


HISTORY  OF  NEfV  YORK 

wood  sentenced  him  to  be  "hanged,  drawn  and  cjuartcred,  in 
accordance  with  English  law."  Alderman  Hutchins  was  also 
condemned  and  sentenced.  Both  the  accused  were  successful  in 
securing  a  reprieve  and,  on  the  arrival  of  Lord  Cornbury,  who 
reached  New  York  in  May,  the  proceedings  of  the  court  were 
completely  reversed.  Lord  Cornbury  took  the  side  of  the  aristo- 
cratic or  anti-Leislerian  party,  and  the  condition  of  affairs,  inso- 
much as  it  related  to  these  two  factions,  was  again  completely 
reversed.  Chief  Justice  Atwood  and  Collector  Weaver  were  now 
fallen  into  complete  disfavor  and,  fearful  of  retaliation  from 
those  whom  they  had  officially  condemned,  they  fled,  first  to 
\'irginia  and  subsequently  to  England.  The  end  of  this  affair 
came  in  May  of  the  following  year,  when  the  general  assembly 
passed  an  act  which  was  approved  by  the  governor  on  June  19, 
1703,  "reversing  and  making  null  and  void  said  judgments  and 
all  proceedings  thereon."^ 

Nanfan  during  his  short  term  of  office  erected  a  court  of 
exchequer  for  the  province,  and  also  summoned  an  assembly. 
Although  the  assembly  approved  of  the  principal  measures  which 
the  governor  advocated,  it  was  not  entirely  subservient  to  his 
inclinations.  It  availed  itself  of  the  opportunity  to  pass  an  act 
declaring  opposition  to  the  setting  up  of  a  court  of  equity  in  the 
province  without  the  consent  of  the  legislature. 

"Captain  Gartoii,  reported  from  the  Committee  on  Grievance  to  whom 
the  petition  of  IVilliam  Hallet,  Thomas  Hicks,  &c.,  and  the  petition  of 
Richard  Smith  were  referred,  That  they  had  examined  and  considered  the 
same,  and  come  to  a  Resolution,  which  they  had  directed  him  to  report  to 
the  House,  and  is  as  followeth,  viz. 

"Resolved,   The  setting  up  of  a  court  of  Equity  in  the  Colony,  with- 


I.  "Colonial  Laws  of  New  York,"  vol.  I.  p.  531;  "Journal  of  the 
Votes  and  Proceedings  of  the  General  Assembly  of  the  Colony  of  New 
York,"  vol.  I,  pp.  164-172. 

^37 


LEGAL  AND  JUDICIAL 

out  Consent  in  General  Assembly,  is  an  innovation  without  any  former 
Precedent,  inconvenient  and  contrary  to  the  English  Law. 

"Resolved,  That  the  Court  of  Chancery,  as  lately  created  and  man- 
aged here,  was,  and  is  unwarrantable,  a  great  Oppression  to  the  Subject, 
of  pernicious  Example  and  Consequence ;  That  all  proceedings,  Orders  and 
Decrees,  in  the  same  are,  and  of  right  ought  to  be  declared  null  and  void, 
and  that  a  Bill  be  bro't  in  according  to  these  two  Resolutions." 

"To  which  the  House  agreed.'" 

To  carry  out  this  resolution,  a  bill  entitled  "An  Act  to  de- 
clare the  illegality,  and  frustrate  the  irregular  proceedings,  Ex- 
tortions and  Decrees,  of  the  late  pretended  Court  of  Chancery," 
was  brought  into  the  house  and  read  for  the  first  time  on  No- 
vember 25,  1702.  It  was  read  for  the  second  time  on  November 
26,  and  read  for  the  third  time  and  passed  on  November  27.' 

Throughout  his  administration,  Lord  Cornbury  was  com- 
pletely at  odds  with  the  assembly.  The  opposition  to  the  auto- 
cratic rule  of  the  English  governors  and  the  claimed  preroga- 
tive of  the  crown,  especially  in  relation  to  the  institution  of 
courts,  was  already  strong  and  continued  repeatedly  to  be 
expressed.  In  this  the  foundation  for  the  contentions  of  polit- 
ical parties  which  ultimately  led  to  the  Revolution  of  1776  was 
being  laid.  The  governor's  frequent  denunciations  of  the  actions 
of  the  assembly  and  of  the  resolutions  which  were  from  time 
to  time  passed  by  that  body,  clearly  indicated  the  difference  of 
opinions  between  the  people  and  their  English  rulers,  and  were 
significant  of  the  ever-widening  breach  between  the  two  as  touch- 
ing these  matters.  Governor  Cornbury  vigorously  objected  to 
the  use  of  the  title  "general  assembly"  in  bills  passed  by  the  legis- 
lature, and  also  objected  in  no  mild  words  when  the  assembly 


2.  "Journal  of  the  Votes  and  Proceedings  of  the  General  Assembly  of 
the  Colony  of  New  York,"  vol.  I,  p.  150. 

3.  "Journal  of  the  Votes  and  Proceedings  of  the  General  Assembly  of 
the  Colony  of  New  York,"  vol.  I,  pp.  156-157- 

238 


HISTORY  OF  NEW  YORK 

used  the  term  "rights  of  the  house"  in  some  of  its  resolutions. 
Addressing  the  assembly  on  this  point,  he  said,  "I  know  of  no 
rights  that  you  have  as  an  assembly,  but  such  as  the  Queen  is 
pleased  to  allow  you." 

On  the  other  hand,  the  assembly  was  no  less  frequent  and 
positive  in  its  assertions  of  what  it  considered  its  rights  and  the 
rights  of  the  people.  Again  and  again,  resolutions  were  reported 
and  passed  showing  the  temper  of  the  legislators  and  specifically 
declaring  their  opposition  to  any  encroachments  of  the  crown  and 
its  representatives  upon  their  rights.  The  spirit  which  provoked 
the  assembly  to  pass  the  resolutions  of  November,  1702,  continued 
to  be  exhibited  upon  more  than  one  occasion  in  the  following 
years,  and  troubles  thickened  around  Cornbury  as  his  adminis- 
tration continued.  Not  only  was  he  opposed  in  matters  of  theory 
and  principle,  but  he  was  in  disagreement  with  both  bodies  in 
regard  to  many  practical  public  affairs,  especially  as  related  to 
his  salary  and  to  appropriations  for  fortifications  and  adminis- 
trative measures.  In  1708  things  had  come  to  such  a  critical 
point  that  the  assembly  appointed  "a  committee  on  grievances", 
the  chairman  of  which  was  William  Nicolls,  who  was  then 
speaker  of  the  house.  This  committee  reported  a  series  of  reso- 
lutions in  which  various  acts  of  Cornbury's  administration  were 
soundly  denounced  as  grievances  and  contrary  to  law.  And  here 
again  the  representatives  of  the  people  availed  themselves  of  the 
opportunity  to  register  their  opinion  in  regard  to  the  establish- 
ing of  courts  of  equity,  one  of  the  resolutions  in  the  series  being: 

"Resolved:  That  the  erecting  of  a  Court  of  Equity  without  consent 
in  General  Assembly  is  contrary  to  law,  without  precedent,  and  of  dan- 
gerous consequence  to  the  libert>'  and  property  of  the  subjects." 

Following  closely  upon  the  passage  of  these  resolutions,  many 

239 


LEGAL  AND  JUDICIAL 

petitions  condemning  Cornbury  were  drawn  up  and  signed  by 
leading  and  influential  citizens  of  New  York  and  New  Jersey, 
These  were  sent  to  England,  and  a  request  was  made  for  the 
removal  of  the  governor,  whose  general  immorality,  both  as 
regards  his  private  life,  his  maladministration  of  affairs  and  his 
misappropriations  of  public  funds,  had  long  been  a  public  scan- 
dal. As  a  result  of  these  representations,  Cornbury  was  removed 
in  1708.  William  Smith,  the  historian,  who  lived  in  the  genera- 
tion after  Cornbury  and  had  the  personal  acquaintance  of  men 
who  had  known  the  governor  well,  wrote  of  him  and  his  char- 
acter : 

"We  have  never  had  a  governor  so  universally  detested,  nor  one  who 
so  richly  deserved  the  pubhc  abhorrence.  In  spite  of  his  noble  descent, 
his  behavior  was  trifling,  mean,  and  extravagant.  *  *  *  Their  (the 
people)  indignation  was  kindled  by  his  despotic  rule,  savage  bigotry,  in- 
satiable avarice,  and  injustice  not  only  to  the  public  but  even  his  private 
creditors."* 

Following  Cornbury  came  John,  Lord  Lovelace  and  Baron 
of  Hurley,  who  was  appointed  to  be  governor  of  New  York  and 
New  Jersey,  March  28,  1708.  He  arrived  in  New  York  in  De- 
cember of  the  same  year,  but  his  rule  of  the  province  lasted  only 
a  few  months.  He  summoned  a  new  assembly  which  met  in 
April,  1709.  Despite  his  gracious  attitude  and  his  considerate 
words  in  his  opening  address  to  the  assembly,  the  money  ques- 
tion, or  the  question  of  raising  revenue  for  the  support  of  the 
administration  and  the  general  affairs  of  the  colony,  was  at  once 
precipitated.  In  fact,  in  this  respect,  the  new  assembly  followed 
close  in  the  footsteps  of  those  which  had  preceded  it,  and  its 
action  was  likewise  followed  by  the  legislative  bodies  of  succeed- 
ing years.     It  was  substantially  upon  this  issue  that  the  struggle 


4.    "History  of  New  York",  by  William  Smith,  vol.  II,  p.  194. 

240 


HISTORY  OF  NEW  YORK 

between  the  people  and  the  crown  was  maintained  for  the  next 
three-quarters  of  a  century.  As  the  historian  Bancroft  has  well 
put  it  in  speaking  of  this  assembly,  "the  assembly  which  in  April, 
1709,  met  Lord  Lovelace,  began  the  contest  that  was  never  to 
cease  but  with  independence."  Other  historians  have  commented 
upon  this  situation  in  similar  manner,  as  for  example ; 

"The  history  of  the  English  continental  colonies  during  the  first  half 
of  the  eighteenth  century  was  largely  made  up  of  petty  bickerings  between 
the  popular  assembhes  and  the  royal  governors.  The  principle  at  stake  was 
important ;  a  fixed  salary-grant  would  have  been  in  the  nature  of  a  tax  im- 
posed by  the  crown.  The  acrimonious  contention  was  greatly  disturbing 
to  all  material  interests,  but  it  served  as  a  most  valuable  constitutional 
training-school  for  the  Revolution.'" 

Governor  Lovelace  died  May  6,  1709.  His  lieutenant  goy- 
ernor  was  Richard  Ingoldesby,  who  assumed  control  of  aflFairs 
temporarily,  as  he  had  previously  done  on  the  death  of  Governor 
Sloughter  in  1691.  His  conduct  was  no  more  acceptable  to  the 
people  nor  to  the  English  authorities  than  it  had  been  before,  and 
he  was  quickly  removed,  Gerardus  Beeckman  being  placed  tem- 
porarily at  the  head  of  the  government  in  April,  1710.  Governor 
Robert  Hunter,  appointed  to  succeed  Lovelace,  arrived  in  the 
colony  in  July,  17 10.  His  administration  of  nine  years  was  as 
conspicuously  successful  as  those  of  his  immediate  predecessors 
had  been  to  the  contrary.  He  has  been  ranked  among  the  ablest 
of  all  the  colonial  governors  of  New  York,  and,  with  perhaps  the 
exception  of  Governor  Dongan,  he  accomplished  more  than  any 
other  who  had  direction  of  New  York  colonial  aflFairs. 

In  1712,  by  the  advice  of  his  council,  Hunter  began  to  exer- 
cise the  offices  of  chancellor.  In  October  of  that  year  he  ap- 
pointed Rip  Van  Dam  and  Adolph  Philipse  masters,  and  also 


5.    "The  Colonies  from  1492-1750,"  by  Reuben  Thwaites,  p.  271. 

241 
IS 


LEGAL  AND  JUDICIAL 

appointed  registers,  commissioners  and  clerks.  A  proclamation 
was  issued  which  announced  that  the  court  would  sit  on  Thurs- 
day of  every  week.  This  action  of  the  governor  again  touched 
the  people  upon  a  sensitive  spot,  reviving  once  more  the  discussion 
concerning  the  prerogative  of  the  king  in  establishing  courts.  In 
the  assembly  the  matter  was  immediately  taken  up  and  the 
strongest  opposition  to  the  governor  developed.  A  resolution  was 
passed  which,  in  form  and  almost  in  language,  was  identical  with 
those  which  had  been  passed  by  preceding  assemblies  on  the  same 
subject : 

"Resolved,  That  ttie  erecting  of  a  Court  of  Chancery  without  consent 
in  general  assembly  is  contrary  to  law,  without  precedent,  and  of  dangerous 
consequeucff  to  the  liberty  and  property  of  the  subjects. 

"That  the  establishing  fees,  without  consent  in  general  assembly  is 
contrary  to  law."* 

When  these  resolutions  were  brought  to  the  attention  of  the 
governor's  council,  they  became  the  subject  of  very  serious  con- 
sideration, and  a  long  representation  concerning  them  was  trans- 
mitted to  the  lords  of  trade  in  London.  This  brought  back  a 
letter  to  Governor  Hunter  approving  his  action  in  the  case,  and 
placing  blame  upon  the  assembly,  asserting  "That  her  majesty 
has  an  undoubted  right  of  appointing  such,  and  so  many  courts 
of  judicature,  in  the  plantations,  as  she  shall  think  necessary  for 
the  distribution  of  justice.''    Thus  was  the  issue  sharply  defined. 

The  controversy  continued  unabated  during  the  administra- 
tion of  Governor  William  Burnet,  the  successor  of  Governor 
Hunter.  Burnet  came  to  New  York  in  1720.  His  appointment 
having  been  made  in  April  of  that  year,  he  arrived  in  the  colony 


I 


6.  "Journal  of  the  Votes  and  Proceedings  of  the  General  Assembly  of 
the  Colony  of  New  York,"  vol.  I. 

7.  "History  of  New  York,"  by  William  Smith,  vol.  II,  p.  220. 

242 


HISTORY  OF  N  EW  YORK 

in  the  following  September.  During  the  eight  years  he  was  at  the 
head  of  the  government,  he  conducted  affairs  as  wisely  perhaps 
as  any  man  could  under  the  circumstances,  but  it  was  not  possible 
for  him  to  escape  entirely  the  influence  of  the  factions  with  which 
he  was  surrounded,  and  which  in  a  large  measure  had  wrecked 
the  careers  of  his  predecessors.  He  managed  fairly  well  with  the 
assembly.  By  associating  James  Alexander  and  Cadwallader 
Colden  with  himself  in  his  council,  and  having  the  benefit  of  their 
opinions  and  advice,  he  added  considerable  to  his  personal  power, 
and  was  able  to  handle  the  assembly  more  effectively  in  support 
of  the  legislation  which  he  desired.  His  marriage  in  1721  to 
Mary  Van  Home,  the  eldest  daughter  of  Abraham  Van  Home, 
one  of  the  wealthiest  and  most  influential  merchants  in  New 
York  City,  greatly  strengthened  him  both  socially  and  politically. 
However,  he  did  not  concern  himself  much  with  the  petty  politics 
of  the  city  and  colony,  his  chief  aim  being  to  serve  faithfully  the 
interests  which  had  been  entrusted  to  him,  and  to  conserve  the 
welfare  of  the  colony  as  well  as  might  be,  under  the  royal  instruc- 
tions which  had  been  given  to  him  in  his  commission.  Not  until 
toward  the  close  of  his  administration  was  there  much  if  any 
controversy  in  relation  to  legal  affairs  or  the  constitution  of 
courts.  One  of  his  notable  traits  was  his  fondness  for  exercising 
the  office  of  chancellor.  Concerning  this,  New  York's  first  his- 
torian has  said: 

"The  office  of  chancellor  was  his  delight.  He  made  a  tolerable  figure  in 
the  exercise  of  it,  though  he  was  no  lawyer,  and  had  a  foible  very  unsuita- 
ble for  a  judge.  I  mean  his  resolving  too  speedily,  for  he  used  to  say  of 
himself,  'I  act  first  and  think  afterwards.' '" 

His  interest  in  chancery  affairs  was  one  of  the  causes  which 


8.    "History  of  New  York,"  by  William  Smith,  vol.  I,  p.  249. 

243 


LEGAL  AND  JUDICIAL 

ultimately  led  to  his  removal  as  governor.  One  of  these  related 
to  the  French  congregation  of  New  York  city,  which  had  by  that 
time  become  large  and  flourishing.  A  difference  had  arisen  be- 
tween the  members  of  the  church  in  regard  to  the  pastorate,  and 
the  incumbent  of  that  office,  the  Reverend  Louis  Rou,  being  re- 
moved by  the  consistory,  filed  a  bill  in  chancery  to  compel  the 
consistory  to  reverse  its  action.  When  the  case  came  up,  the 
consistory  pleaded  against  the  jurisdiction  of  the  court,  and  this 
plea  was  overruled  by  the  governor.  The  opponents  of  Mr.  Rou, 
seeing  clearly  the  final  outcome  of  the  case  in  the  hands  of  the 
governor  as  chancellor,  left  the  church  and  became  thereafter 
frank  and  outspoken  enemies  of  Burnet;  among  these  was 
Stephen  De  Lancey,  then  one  of  the  leading  men  in  the  province. 
Adolph  Philipse  also  had  become  estranged  from  the  government 
on  account  of  a  suit  which  he  had  in  chancery  in  relation  to  a 
difference  about  money  matters  with  a  former  business  partner. 
In  chancery  the  governor  dismissed  the  bill  of  Philipse,  who 
thereafter  was  one  of  the  governor's  active  opponents. 

Thus  having  arrayed  two  of  the  strongest  and  most  influ- 
ential men  of  the  province  against  him.  Governor  Burnet  found 
that,  for  the  rest  of  his  career  as  a  governor,  he  had  a  diffi- 
cult path  to  pursue.  Upon  the  meeting  of  the  assembly  in  Sep- 
tember, 1725,  Adolph  Philipse  was  elected  speaker,  and  Stephen 
DeLancey  was  one  of  the  new  members.  The  governor  refused 
to  administer  the  oath  to  DeLancey,  averring  that  he  was  not  a 
citizen,  but  the  assembly  favored  DeLancey  and  availed  itself  of 
the  occasion  to  declare  its  right  to  judge  of  the  qualification  of 
its  own  members,  asserting  that  the  governor  had  no  authority  in 
such  matters.  Thereafter  the  combined  influence  of  DeLancey 
and  Philipse  was  brought  strongly  to  bear  against  the  governor, 

244 


HISTORY  OF  NEfV  YORK 

and  all  the  governor's  supporters  and  most  of  the  members  of  the 
assembly  supported  them  in  this  opposition. 

Upon  the  accession  of  King  George  II.,  the  election  of  a 
new  assembly  was  ordered,  and  this  met  September  30,  1727, 
remaining  in  session  two  months.  By  this  time  it  was  well  known 
that  the  end  of  Burnet's  administration  was  approaching,  and  his 
opponents  had  a  last  thrust  at  him.  After  the  manner  of  pre- 
ceding assemblies,  another  declaration  was  made  asserting  the 
virtual  independence  of  the  legislature.  The  resolutions  passed  on 
the  last  day  of  the  session  showed  that  the  spirit  of  freedom 
still  controlled  the  people  and  their  representatives;  and  they 
were  another  move  toward  full  colonial  independence.  They 
arraigned  the  governor  in  decisive  terms,  and  especially  denounced 
his  action  in  setting  up  a  court  of  chancery,  that  rendered 

"the  Libertys  and  properties  of  the  Subjects  extreamly  Precarious, 
and  that  by  the  violent  measures  taken  in  &  allowed  by  it  some  have  been 
ruined,  others  obliged  to  abandon  the  Colony  and  many  restrained  in  it 
either  by  Imprisonment  or  by  excessive  bail  Exacted  from  them  not  to 
depart." 

In  the  resolutions  it  was  also  added  that  the  court  should 
mot  have  been  set  up  without  the  consent  of  the  assembly,  and 
to  emphasize  this  point  the  further  declaration  was  made  that  that 
body  would,  at  its  next  sitting,  pass  an  act  to  make  null  and  void 
all  acts,  decrees  and  proceedings  of  the  court  under  Burnet.  In 
April,  1728,  Burnet  was  relieved  of  his  charge  of  the  colonies  of 
New  York  and  New  Jersey.  Transferred  to  be  governor  of  the 
Massachusetts  Bay  province,  he  left  for  his  new  post  of  duty 
immediately  after  the  arrival  of  his  successor  in  New  York. 
Difficulties  between  himself  and  the  assembly  of  Massachusetts 
arose  at  once,  similar  to  those  which  had  existed  between  him 
and  the  assembly  of  New  York,  but  they  did  not  long  continue 

24B 


■LEGAL  AND  JUDICI AL 

to  trouble  him,  for  he  died  suddenly  in  Boston,  in  September, 
1729. 

John  Montgomerie,  who  succeeded  Governor  Burnet  in  1728, 
had  a  short  administration  of  less  than  four  years.  He  is  con- 
spicuous in  the  history  of  the  New  York  province,  from  his 
identification  with  the  new  charter  which  was  granted  to  New 
York  city  in  February,  1731,  under  his  name.  Other  than  that 
his  administration  was  in  no  wise  of  marked  importance.  He 
was  diplomatic  in  his  official  relations  to  the  people,  and  to  the 
leaders  of  the  political  parties,  but  was  not  remarkably  energetic. 
His  wisdom,  in  what  was  indeed  a  difficult  situation,  was  shown 
by  the  cleverness  with  which  he  avoided  the  particular  difficul- 
ties which  wrecked  the  public  tranquility  under  his  immediate 
predecessors.  Although  a  meeting  of  the  assembly  had  been 
called  by  Governor  Burnet  before  he  had  left  for  Massachusetts, 
Montgomerie  dissolved  the  assembly  before  the  date  for  its  con- 
vening. Thus  he  escaped  being  officially  drawn  into  the  contro- 
versies in  that  legislative  body  which  were  generally  quick  to  be 
manifested  against  any  governor.  As  for  the  court  of  chancery, 
he  declined  to  sit  in  that  court,  frankly  conceding  his  inability  prop- 
erly to  perform  the  duties  of  chancellor,  although  this  naturally 
fell  to  him  as  the  chief  magistrate  of  the  province.  He  main- 
tained this  aloofness  until,  by  a  special  command  from  England, 
he  was  in  emphatical  terms  enjoined  to  exercise  the  duties  of  the 
office.  Even  then,  while  necessarily  obeying  the  order  of  the 
king,  he  still  expressed  reluctance  that  he  was  forced  into  this 
position,  contrary  to  his  desires ;  and  thus  his  attitude  in  this  mat- 
ter had  the  tendency  for  the  moment  of  somewhat  quieting  the 
opposition  of  the  people  to  the  court,  and  as  well  to  the  governor  as 
chancellor.  In  fact,  throughout  his  administration,  the  court  of 
chancery  was  the  particular  aversion  of  Montgomerie.    In  it  he 

246 


HISTORY  OF  NEW  YORK 

never  gave  a  single  decree  and  issued  no  more  than  three  orders, 
and  even  these,  both  as  to  form  and  matter,  were  first  settled 
by  the  council.  Thus,  so  far  as  the  issue  of  the  court  of  chancery 
and  the  chancellor  was  concerned,  he  managed  to  keep  himself 
and  the  subject  well  in  the  back  ground. 

The  quietude  which  prevailed  during  the  administration  of 
Montgomerie  did  not  long  continue  after  his  sudden  death  in 
July,  1 73 1.  The  governorship  devolved  upon  Rip  Van  Dam, 
who,  as  the  eldest  member  and  president  of  the  council,  became 
acting  governor,  and  this  was  the  beginning  of  one  of  the  most 
famous  political  controversies  in  the  province  in  that  century. 
Trouble  arose  over  the  question  of  the  salary  which  Van  Dam 
should  receive  during  the  thirteen  months  in  which  he  officiated 
before  the  arrival  of  Governor  Cosby.  The  council,  in  February, 
1732,  decreed  that  President  Van  Dam  was  entitled  to  the  entire 
salary  which  had  been  settled  on  the  late  governor.  When  Crosby 
arrived  in  August,  1732,  he  demanded  from  Van  Dam  one-half 
of  the  salary  which  had  been  paid  to  him  during  the  preceding 
thirteen  months ;  this  was  in  accordance  with  an  order  of  the 
council  in  England.  Van  Dam  was  willing  to  accede  to  this 
demand  provided  Cosby  would  pay  him  one-half  of  the  emolu- 
ments or  fees  which  he  had  taken  as  governor  during  the  same 
period,  and  before  he  had  arrived  in  the  colony — emoluments 
or  fees  that  were  for  pretended  services  and  expenses. 

Cosby  determined  to  prosecute  Van  Dam,  and,  on  the  other 
hand.  Van  Dam  proposed  to  sue  the  governor.  It  was  gener- 
erally  considered  in  the  province  that  the  governor  was  entirely 
in  the  wrong  in  the  matter,  but  that  had  no  effect  upon  Cosby. 
He  decided  to  erect  a  chancery  court  to  try  the  case,  and  by  this 
action  the  people  were  again  stirred  up  to  opposition  to  an 
equity  court  ruled  by  the  governor.    Not  only  had  the  establishing 

247 


LEGAL  AND  JUDICIAL 

of  the  equity  court  become  a  matter  peculiarly  obnoxious  to  the 
people,  but  in  this  case  it  was  even  beyond  the  limit  of  ordinary 
prudence  for  the  governor  to  sit  as  chancellor  in  a  case  to  which 
he  was  one  of  the  parties  in  controversy.  Accordingly,  he 
appointed  Stephen  DeLancey,  Adolph  Philipse  and  Chief  Justice 
Lewis  Morris,  to  act  as  equity  judges.  DeLancey  and  Philipse 
were  in  full  sympathy  with  Cosby  in  his  aims  and  methods,  but 
Chief  Justice  Morris  was  as  strongly  opposed.  The  trial  which 
followed  was  not  only  one  of  supreme  importance  in  formulat- 
ing and  establishing  the  rights  of  the  people  in  regard  to  this 
court  jurisdiction,  but  it  became  a  conspicuous  mile-stone  in  the 
progress  of  the  province  toward  freedom.  The  people,  having 
little  sympathy  with  the  aristocratic  element  that  supported  the 
governor,  protested  against  this  renewed  attack  upon  their  lib- 
erties. They  recalled  the  time  of  Leisler  and  Milbourne,  and  the 
Dutch  resented  the  arraignment  of  Van  Dam.  He  was  a  Dutch- 
man, besides  being  one  of  the  most  respected  members  of  the 
community,  and  his  fellow  Dutchmen  espoused  his  cause  as  their 
own,  looking  upon  him  as  being  particularly  their  representative. 
William  Smith,  one  of  the  most  talented  lawyers  of  the 
period,  and  James  Alexander,  scarcely  second  to  Smith  in  legal 
ability,  and  also  a  member  of  the  governor's  council,  defended 
Van  Dam.  The  substance  of  their  defense  was  a  denial  of  the 
authority  of  the  royal  council  to  legislate  for  New  York,  and  an 
appeal  for  independence.  Without  hearing  the  opposing  counsel. 
Chief  Justice  Morris  delivered  a  decision  in  favor  of  the  plea  of 
Van  Dam,  holding  that  the  governor  had  no  power  to  create  an 
equity  court.  Tlie  associate  justices,  DeLancey  and  Philipse,  gave 
opposing  opinions  defending  the  governor  and  overruling  the 
chief  justice.  But  no  final  decision  was  ever  reached  in  this  case,^ 
and  the  court  of  exchequer,  as  constituted  by  Cosby,  never  met 

248 


James  Alexander 


> 


JAMES   ALEXANDER. 

(1690-1756). 

Attorney  General.  1721  ;  Member  of  Colonial  Council,  1721- 
37  and  1750-56;  one  of  the  counsel  who  defended  the  freedom 
of  the  press  in  the  person  of  John  Peter  Zenger,  in  1735. 


HISTORY  OF  NEW  YORK 

again.  Public  opinion  had  set  in  so  strongly  against  it,  that  any 
further  attempts  to  maintain  it  in  any  form  were  for  the  time 
abandoned. 

Governor  Cosby  was  incensed  over  his  failure  to  coerce  the 
•ourt  in  this  case.  He  denounced  both  Smith  and  Alexander,  and 
afterward,  in  1732,  he  wrote  to  the  lords  of  trade  declaring 
Alexander  to  be  "unfit  to  sit  in  the  council"  and  of  "known  very 
bad  character."  He  selected  Chief  Justice  Morris  as  the  special 
subject  of  his  resentment  and  abuse,  and  after  heckling  him  in 
regard  to  his  decision  in  the  case,  and  practically  imputing  to  him 
bad  faith  and  lack  of  honor,  he  removed  him  from  office,  and 
promoted  James  DeLancey  to  the  position  thus  arbitrarily  made 
▼acant.  Thus  he  added  fuel  to  the  flames  already  started,  and 
succeeded  in  making  a  sharply  defined  issue  in  which  Chief  Jus- 
tice Morris  was  naturally  the  conspicuous  exponent  of  popular 
rights,  and  DeLancey  and  his  associates  the  supporters  of  the 
governor.  The  alignment  of  political  factions  which  was  then 
made,  practically  continued  for  the  next  forty  years ;  the  Morrises 
and  their  supporters  being  the  Whigs  of  the  period  and  the 
DeLanceys  and  their  associates  the  Tories,  until  after  the  break- 
mg  out  of  the  Revolution. 

In  April,  1734,  a  new  assembly  was  convened  by  Governor 
Cosby.  While  the  general  disposition  of  the  members  of  this 
assembly  was  to  be  conciliatory  to  the  governor  in  small  matters, 
there  still  existed  the  strongest  opposition  to  any  important  meas- 
ures which  seemed  to  tend  toward  encroaching  upon  the  freedom 
of  the  people.  The  assembly  was  even  more  strongly  determined 
than  its  predecessors  against  a  court  of  exchequer.  Early  in  the 
session  a  bill  for  settling  fees  and  bills  was  up  for  consideration 
before  the  house,  and,  in  connection  therewith,  various  petitions 
from  New  York,  Westchester,  Queens  and  other  counties  had 

249 


LEGAL  AND  JUDICIAL 

been  received,  principally  concerning  the  courts  of  justice.  In 
May  the  house  took  the  extraordinary  course  of  inviting  James 
Murray  and  William  Smith,  then  the  principal  lawyers  of  the 
opposing  parties,  to  address  the  house  upon  the  subject  of  the 
right  of  the  assembly  to  legislate  regarding  the  courts.  On  June 
7,  the  day  fixed  for  the  hearing,  the  two  lawyers  appeared.  His- 
torians point  out  as  worthy  of  note  and  significant  of  the  attitude 
of  the  members  of  the  assembly,  that  they  appeared  in  the 
capacity  of  assistants  to  the  legislature,  and  not  as  counsel  for 
the  petitioners.  Smith  spoke  for  three  days  and  Murray  for  five 
days.  Smith  argued  in  essence  that  no  legislation  could  be  en- 
acted in  the  colony  by  the  act  of  the  crown,  but  only  by  act  of  the 
legislature.     He  said  in  conclusion : 

"Tis  the  misery  of  an  arbitrary  government  that  a  man  can  enjoy 
nothing  under  it  that  he  can  call  his  own.  Life,  liberty  and  property  are 
not  his,  but  ail  at  the  will  and  disposal  of  his  tyrannical  owner.  *  *  * 
If  an  arbitrary  power  over  our  liberties  and  properties  be  let  in  upon  us, 
but  at  the  back  door,  it  will  certainly  drive  many  of  us  out  of  our  habita- 
tions, and  'tis  feared,  will  once  more  reduce  our  country  to  a  wilderness, 
and  a  land  without  inhabitants."* 

Murray  argued  that  the  four  great  courts  of  chancery, — 
king's  bench,  common  pleas,  and  exchequer, — were  of  original 
jurisdiction  by  the  constitution  of  England,  and  were  founded  on 
immemorial  usage.  He  held  that  if  the  colony,  as  an  English 
province,  was  entitled  to  like  courts  as  essential  branches  of  Eng- 
lish liberty,  the  establishment  of  them  by  a  new  law  through  act 
of  assembly  would  raise  doubts  as  to  the  people's  title  to  enjoy 
rights  and  privileges  as  Englishmen.  He  contended  that  the 
colony  was  entitled  to  these  courts,  as  they  were  entitled  to  other 
liberties,  without  acts  of  the  legislature.    In  conclusion,  he  advised 


9.    "History  of  the  Province  of  New  York,"  by  William  Smith,  vol.  I, 
P-  372. 

250 


H ISTORY  OF  NEW  YORK 

that  if  new  laws  were  passed  they  should  be  in  "imitation  of  such 
laws,  relating  to  those  courts  as  the  wise  legislatives  of  England 
have  thought  fit  to  make." 

"It  did  not  follow  from  his  (Smith's)  authorities,  as  some  imagine, 
that  no  court  could  be  opened  and  organized  in  the  colony  without  the  aid 
of  the  legislature ;  nor  would  the  passing  of  an  act  for  that  purpose,  in  the 
least  degree  shake  our  titles,  as  Mr.  Murray  asserted,  to  any  other  rights 
and  privileges  to  which  we  are  entitled  by  the  common  laws  of  England. 
Neither  of  these  gentlemen,  had  the  question  been  proposed  by  the  house, 
would  have  denied  that  the  colony  was  entitled,  for  instance,  to  a  court  of 
king's  bench,  nor  that  the  law  constituting  the  judges  of  it,  sufficient  for 
their  exercise  of  all  the  powers  of  the  court  of  king's  bench  at  Westmin- 
ster, and  so  respecting  either  of  the  other  courts.  Mr.  Smith's  law  au- 
thority did  not  militate  against  such  a  court  because  it  would  not  l>e 
creating  a  new  court ;  and  if  the  crown  had  exceeded  its  authority  in 
modelling  it,  by  an  ordinance  or  commission,  though  that  act  may  be 
void,  the  right  to  such  court  would  still  exist,  because  it  is  not  in  the 
power  of  the  crown  to  repeal  an  old  law,  and  extinguish  the  rights  and 
privileges  of  the  subjects."" 

Further  progress  in  the  march  toward  ultimate  freedom  was 
conspicuously  marked  during  Governor  Cosby's  administration  by 
the  Zenger  case.  In  this  the  freedom  of  the  press  was  the  vital 
issue.  The  leaders  of  the  opposition  to  the  governor,  which  by 
this  time  had  grown  to  include  nearly  all  the  strong  legal  intel- 
lects of  the  day,  as  Morris,  Alexander,  Smith,  Golden  and  the 
Livingstons,  had  little  opportunity  to  make  their  complaints,  or 
to  promulgate  and  discuss  before  the  public  the  issues  to  which 
they  stood  committed.  Only  occasionally  was  there  a  meeting  of 
the  assembly,  and  rarely  were  elections  held,  while  the  courts 
were  completely  controlled  by  the  governor,  and  free  speech  there 
rigorously  restrained.  In  this  emergency  they  fell  back  upon  the 
power  of  the  press,  and,  to  voice  their  opinions,  they  utilized 


10.    "History  of  the  Province  of  New  York,"  by  William  Smith,  vol. 
II,  p.  i8. 

251 


LEGAL  AND  JUDICIAL 

Zenger's  Weekly  Journal,  in  the  columns  of  which  they  demanded 
freedom  of  thought  and  speech  as  the  birthright  of  every  free 
people.  From  a  literary  point  of  view  the  Journal  was  not  an 
imposing  production,  but  many  of  its  articles  contributed  by  the 
leaders  of  radical  thought  of  that  day  were  productions  of  more 
than  ordinary  character.  The  constant  theme  of  the  writers  was 
freedom,  emancipation  from  the  exactions  of  despotism  and  auto- 
cratic government,  and  the  liberty  of  the  press.  It  was  not  long 
kefore  the  governor  and  the  aristocratic  party  led  by  DeLancey 
became  exasperated  over  the  persistent  aggressiveness  of  the 
Journal  in  its  new  phase,  and  in  September,  1734,  this  animosity 
finally  culminated  in  a  movement  to  crush  it  and  its  supporters. 
DeLancey,  going  before  the  grand  jury,  charged  that  the  paper 
was  of  treasonable  character,  and  demanded  the  indictment  of  its 
editor,  but  the  jury  refused  to  obey  that  mandate.  An  appeal 
which  the  governor  made  to  the  assembly  met  with  no  more 
favorable  response.  Later,  however,  at  the  behest  of  DeLancey, 
the  grand  jury  yielded  so  far  as  to  present  that  Zenger  was  guilty 
of  having  published  scandalous  songs  concerning  the  recent  elec- 
tions of  magistrates  in  the  city ;  thereupon  the  governor's  council, 
on  November  2,  1734,  declared  these  papers  to  be  libelous  and 
seditious  and  directed,  in  an  official  order,  that  they  should  be 
burned : 

"Whereas,  by  an  order  of  this  board  of  this  day  some  of  John  Peter 
Zenger's  Journals  entitled  "The  New  York  Weekly  Journal"  containing 
the  freshest  advices,  foreign  and  domestic",  Nos.  7,  47,  48,  49,  were  ordered 
to  be  burnt  by  the  hands  of  the  common  hangman  or  whipped  near  the 
pillory  in  this  city,  on  Wednesday,  the  6th  instant,  between  the  hours  of 
eleven  and  twelve  in  the  forenoon,  as  containing  in  them  many  things 
tending  to  sedition,  and  faction,  to  bring  his  majesty's  government  into 
•ontempt,  and  to  disturb  the  peace  thereof;  and  containing  in  them,  like- 
wise, not  only  reflections  upon  his  excellency  the  governor  in  particular, 
and  the  legislature  in  general,  but  also  upon  the  most  considerable  persons 

252 


HISTORY  OF  N EW  YORK 

in  the  most  distinguished  stations  in  this  province.  It  is  therefore  ordered, 
that  the  mayor  and  magistrates  of  this  city  attend  at  the  burning  of  the 
several  papers  of  journals  aforesaid,  numbered  as  above  mentioned." 

The  aldermen  denying  the  right  of  the  governor  and  coun- 
cil to  control  their  conduct,  refused  to  obey  this  order,  and  not 
even  the  hangmen  of  the  city  w^ould  burn  the  papers ;  finally,  the 
sheriff  had  this  done  by  one  of  his  negroes.  Immediately  there- 
after Zenger  was  arrested  and  held  in  confinement  for  trial  on 
information  filed  against  him  for  libel  by  the  attorney  general. 
He  remained  in  prison  until  January  28,  1735,  and  then  was 
arraigned  on  a  new  charge,  in  this  instance  being  represented 
by  James  Alexander  and  William  Smith.  The  defendant's  coun- 
sel filed  exceptions  raising  the  question  of  the  validity  of  the  ap- 
pointment of  DeLancey  and  Philipse  as  judges.  First  they  ob- 
jected to  the  tenure  of  office  by  the  judges,  which,  having  been 
made  by  the  governor  according  to"  "will  and  pleasure"  instead 
of  "during  good  behavior,"  was  contrary  to  the  statutes  of  King 
William  III.  They  also  objected  to  the  investure  of  the  same 
persons  with  the  authority  of  the  court  of  common  pleas,  and  in 
conclusion  they  objected  to  the  form  of  the  proceedings  in  con- 
stituting the  court  as  not  warranted  by  the  common  or  statute 
law,  or  by  any  other  act  of  the  colony,  and  also  to  the  lack  of 
evidence  that  the  council  had  concurred  on  the  appointments. 
These  arguments  naturally  excited  the  ire  of  the  chief  justice 
and  his  associates,  and  the  presiding  officers  denounced  the  two 
lawyers  in  no  moderate  terms.  DeLancey  from  the  bench  de- 
clared his  opinion  that  the  counsel  had  thought  to  gain  a  great 
deal  of  applause  and  popularity  by  opposing  the  court,  as  they 
did  the  court  of  exchequer,  but  that  they  had  brought  it  to  the 
point  that  either  the  justices  must  go  from  the  bench  or  the  law- 
yers from  the  bar.  Then  he  disbarred  them  with  the  order  that 
"for  the  said  contempt  the  said  James  Alexander  and  William 

25« 


LEGAL  AND  JUDICIAL 

Smith  be  excluded  from  further  practice  in  this  court,  and  that 
their  names  be  struck  out  of  the  roll  of  the  attorneys  of  this 
court." 

Thus  left  without  counsel,  Zenger  seemed  helpless.  On  the 
day  of  trial,  DeLancey  and  Philipse  sat  upon  the  bench,  and  there 
was  every  indication  that  the  government  would  make  short 
work  of  the  case.  But  Andrew  Hamilton,  the  eminent  lawyer  of 
Philadelphia,  had  been  quietly  engaged  by  the  friends  of  Zenger 
to  defend  him,  and  on  this  day  he  appeared  in  court.  Hamilton's 
defense  has  become  historic.  As  it  is  well  known,  he  admitted 
the  publication,  and  placed  the  justification  of  the  defense  solely 
upon  the  truth  of  the  libel.  Chief  Justice  DeLancey  maintained 
that  in  the  eye  of  the  law  the  truth  of  the  libel  made  no  differ- 
ence, and  in  the  discussion  that  followed  between  the  chief  jus- 
tice and  the  attorney,  the  chief  justice  finally  refused  to  listen. 
Hamilton  without  hesitation  turned  to  the  jury,  declaring,  "to 
you  we  rnust  now  appeal  for  witnesses  of  the  facts  we  have 
offered  and  are  denied  the  liberty  to  prove :  you  are  to  be  the 
judges  of  the  law  and  the  facts."  He  then  continued  that  remark- 
able speech  which  has  peculiar  authoritativeness  as  the  first  clear 
and  decided  expression  ever  made  in  America  of  the  principles 
of  free  speech  and  free  thought.  He  pointed  out  the  danger  to 
any  people  from  unlicensed  power,  and  declared  that  the  oppressed 
should  always  have  the  right  of  complaint  and  should  not  be 
silenced  by  evil  governors.  He  closed  his  speech  with  this  touch- 
ing and  powerful  peroration : 

"I  am  truly  unequal  to  such  an  undertaking  (the  defense  of  freedom; 
on  many  accounts,  and  you  see  I  labor  under  the  weight  of  many  years 
and  am  borne  down  with  great  infirmities  of  body;  yet  old  and  weak  as  I 
am,  I  should  think  it  my  duty,  if  required,  to  go  to  the  utmost  part  of  the 
land  where  my  services  could  be  of  use  in  assisting  to  quench  the  flame  of 
prosecution  set  on  foot  by  the  government  to  deprive  a  people  of  the  rights 

254 


HISTORY  OF  N EIF  YORK 

of  remonstrating  and  complaining  too  of  the  arbitrary  attempts  of  men  in 
power.  But  to  conclude:  the  question  before  the  court  and  you,  gentlemen 
of  the  jury,  is  not  of  small  nor  private  concern ;  it  is  not  the  cause  of  a 
poor  printer ;  nor  of  New  York  alone,  which  you  are  now  trying.  No !  It 
may  in  its  consequence  affect  every  freeman  who  lives  under  a  British  gov- 
ernment on  the  main  of  America.  It  is  the  best  cause,  it  is  the  cause  of  lib- 
erty !  And  I  make  no  doubt  bul  your  upright  conduct  to-day  will  not  only 
entitle  you  to  the  love  and  esteem  of  your  fellow-citizens ;  but  every  one 
who  prefers  freedom  to  slavery  will  bless  and  honor  you  as  men  who  have 
baffled  the  attempts  of  tyranny  and,  by  an  impartial  and  uncorrupt  verdict, 
have  laid  a  noble  foundation  for  securing  to  ourselves,  our  posterity,  and 
our  neighbors  that  to  which  nature  and  the  laws  of  our  country  have  given 
us  a  right — the  liberty  both  of  exposing  and  opposing  arbitrary  power,  in 
these  parts  of  the  world  at  least,  by  speaking  and  writing  the  truth." 

Although  the  attorney  general  demanded  the  conviction  of 
the  defendant,  and  the  chief  justice  charged  the  jury  that  they 
must  convict  him,  a  verdict  of  not  guilty  was  brought  in.  With 
the  declaration  of  this  verdict  the  principle  of  the  freedom  of  the 
press  in  America  was  forever  established.  The  little  community 
in  which  this  great  contest  was  waged  did  not  fail  to  appreciate 
the  importance  of  the  result.  Those  in  the  court  room  broke 
into  loud  cheers  of  resounding  applause,  and  not  even  the  threats 
of  the  judges  could  restrain  the  tumult.  Hamilton  was  the  hero 
of  the  hour,  and  when,  on  the  next  day,  he  started  on  his  return 
to  his  home  in  Philadelphia,  the  entire  city  turned  out  to  do  him 
honor,  his  departure  being  accompanied  by  the  cheers  of  the 
crowd  and  the  salute  of  cannon.  It  has  been  well  said  that  in 
this  case  and  decision  was  "the  germ  of  American  freedom — the 
morning  star  of  that  liberty  which  subsequently  revolutionized 
America."  The  trial  and  the  events  connected  therewith  throw 
a  strong  light  upon  the  state  of  the  province  at  that  time,  the 
feeling  of  the  people  in  regard  to  the  dangers  which  seemed  to 
threaten  their  liberties,  and  the  opposition  to  the  government 
which  England  was   endeavoring  to   fasten   upon  them.       The 

255 


LEGAL  AND  JUDICIAL 

affair  was  not  alone  illustrative  of  the  situation  as  it  then  was, 
and  of  the  prevailing  opinion  concerning  Cosby  and  his  judges, 
and  an  exhibition  of  the  character  and  talent  of  Andrew  Ham- 
ilton. It  was  all  that,  but  more  than  anything  else,  it  forever 
fixed  the  principles  which  controlled  the  public  mind  and  directed 
the  public  conduct  for  the  next  forty  years  until  the  struggle  for 
freedom  culminated  in  the  Revolution  of  1776." 

Cosby  continued  as  governor  for  only  a  few  months  longer. 
His  power  and  influence  with  the  people  were  practically  at  a« 
end,  and,  although  he  played  the  part  of  tyrant  to  the  last,  it 
was  impossible  for  him  to  accomplish  much  evil.  He  died  in 
March,  1736,  and  was  succeeded  by  his  friend  and  counsellor, 
George  Clark,  who,  like  other  governors  who  had  preceded  him, 
was  little  more  than  an  impoverished  adventurer.  Clark  held 
office  for  seven  years  until  1743,  and  his  rule  was  in  no  wise 
conspicuous  for  anything  save  the  steady  rise  of  the  popular 
party  to  power.  Although  he  had  powerful  friends  at  court,  he 
was  not  himself  a  strong  man  and  could  make  little  progress  in 
the  face  of  opposition.  Political  disputes  waxed  stronger  and 
stronger,  and  the  assembly  was  more  and  more  insistent  upon 
the  recognition  of  its  privileges  and  particularly  its  rights  to  the 
legislative  control  of  colonial  affairs. 

One  remarkable  affair  distinguished  this  period,  involving 
the  highest  court  in  the  province,  and  it  has  always  remained  one 
of  the  darkest  blots  upon  the  history  of  jurisprudence  in  New 
York  City.  This  was  the  so-called  negro  plot  of  1741  and  1742. 
The  story  of  this  affair  has  often  been  told,  and  it  is  simply  an- 
other example  of  the  power  of  prejudice  and  superstition  to  con- 


II.  For  a  contemporaneous  account  of  this  case  see  "A  Brief  Narra- 
tive of  the  Case  and  Trial  of  John  Peter  Zenger  for  Libel" ;  reprinted  by 
John  Holt  at  the  Exchange,  1770.  It  is  not  known  that  Zenger's  original 
account  was  preserved  except  in  this  reprint. 

256 


HISTORY  OF  NEfV  YORK 

trol  the  minds  of  the  community  and  to  carry  that  community  to 
irrational  extremes.  The  freedom  of  New  Amsterdam  from  the 
witchcraft  superstition  has  already  been  referred  to  in  preceding 
pages.  It  was  left,  however,  for  a  later  generation  to  fall  victim 
to  a  worse  superstition  and  become  panic  stricken  and  inhuman. 
In  February,  1741,  several  small  robberies  were  traced  to 
one  John  Hughson,  who  kept  a  tavern  which  was  a  resort  of 
negro  slaves  and  other  disreputable  characters.  Hughson  con- 
fessed to  having  received  stolen  goods,  and  was  held  for  trial. 
In  the  following  month  an  epidemic  of  fires  broke  out  in  the  city; 
these  caused  a  general  panic  among  citizens  of  all  classes,  and 
suspicion  arose  that  the  negroes  had  conspired  in  a  secret  plot  to 
burn  the  city  in  revenge  because  they  had  been  apprehended  in 
connection  with  the  robberies.  At  the  same  time  some  Spanish 
negroes  came  in  on  a  vessel,  and  the  panic  gradually  developed 
into  a  full  belief  that  all  the  colored  people  were  on  the  point  of 
uprising  and  killing  their  white  masters  for  the  purpose  of  estab- 
lishing a  negro  republic.  Mary  Burton,  a  servant  of  John  Hugh- 
son,  and  Peggy  Solinburgh,  or  Peggy  Carey,  a  woman  of  disso- 
lute character  who  lived  in  Hughson's  place,  became  the  principal 
witnesses  against  Hughson,  members  of  his  family  and  the 
negroes.  Arrests  were  promiscuously  made  until  the  jails  were 
crowded  with  thieves,  receivers,  slaves,  prostitutes,  and  other 
individuals  of  the  criminal  class.  Rewards  of  money  and  pardon 
to  any  who  would  confess  were  freely  offered  by  the  authorities, 
and  this  movement,  though  well-intended,  had  the  result  of  stim- 
ulating the  imaginations  of  Mary  Burton  and  Peggy  Carey  to 
renew  their  efforts  in  giving  evidence  against  those  who  had  been 
arrested. 

Before  the  supreme  court  on  April  2,  1741,  many  of  the  ac- 
cused were  brought  to  trial,  and  with  glib  tongues  the  witnesses 

257 

17 


LEGAL  AND  JUDICIAL 

testified  to  their  knowledge  that  there  was  a  negro  conspiracy  in 
which  plans  had  been  laid  to  make  a  certain  negro  the  governor 
and  John  Hughson  king,  and  to  seize  upon  the  property  of  the 
whites  for  the  purpose  of  dividing  it.  Hughson  and  his  wife 
and  Peggy  Carey  were  tried  and  found  guilty  of  robbery,  and 
then  Peggy,  in  an  endeavor  to  save  herself  from  punishment, 
began  another  series  of  confessions  of  conspiracy  and  midnight 
incantations,  and  so  on.  The  negroes  commenced  confessing 
one  against  the  other,  and,  finally,  one  John  Ury,  or  Jury,  a 
former  Roman  Catholic  priest,  who  had  been  a  teacher  in  Phila- 
delphia and  New  York  from  the  time  of  his  arrival  in  the  country 
in  1738,  was  arraigned. 

The  astounding  way  in  which  the  conviction  of  the  truth  of 
this  conspiracy,  absurd  as  it  appears  on  the  face,  held  the  com- 
munity, is  shown  by  its  having  possessed  the  minds  of  so  manj' 
of  the  best  people  of  the  time.  On  the  grand  jury  which  brought 
in  indictments  were  such  men  as  James  Livingston,  Hermann 
Rutgers,  Peter  Rutgers,  Jacobus  Roosevelt,  Stephen  Van  Cort- 
landt,  John  Provoost,  Abraham  De  Peyster,  Peter  Schuyler,  Peter 
Jay  and  others  of  not  less  prominence.  On  the  jury  which  tried 
and  convicted  John  Ury  were  such  men  as  Gerardus  Beeckman, 
Sidney  Breese,  Peter  Furman,  Thomas  Willett,  Brandt  Schuyler 
and  others  of  like  social  and  business  standing.  Hughson  and  his 
wife,  Peggy  Carey  and  John  Ury,  were  hanged,  the  bodies  of 
Hughson  and  one  negro  being  afterwards  hung  in  gibbet.  Thir- 
teen negroes  were  burned  at  the  stake,  eighteen  were  hanged, 
and  seventy  were  transported.  So  much  impressed  was  the  com- 
munity with  its  escape  from  the  dire  calamity  which  it  was 
believed  overhung  it,  that  a  day  of  thanksgiving  on  September  24 
was  ordained  and  generally  observed. 

Daniel  Horsmanden,  then  recorder  of  the  city  of  New  York 

258 


HISTORY  OF  NEW  YORK 

and  afterwards  chief  justice  of  the  supreme  court,  was  one  of  the 
judges  who  sat  in  trying  these  cases.  He  firmly  beheved  in  the 
plot,  and  wrote  and  had  published  an  account  of  it  which  has  the 
character  of  a  special  plea  in  defense  of  his  actions  and  that  of 
his  associates  on  the  bench.  A  perusal  of  this  account  will  show 
to  what  an  extent  this  public  insanity  possessed  even  the  strongest 
and  most  judicial  minds  of  the  period.  Its  title  page  alone  clearly 
reflects  the  spirit  of  the  moment,  and  is  well  worth  reading  as 
one  of  the  uniquely  interesting  printed  pages  of  that  period.  It 
was  printed  in  1744,  by  James  Parker,  and  is  one  of  the  most 
valued  documents  relating  to  the  colonial  period  of  New  York 
City. 

During  the  last  three  decades  of  this  period,  the  governors 
succeeded  each  other  rapidly,  and  had  short  tenure  of  office. 
In  1743  Admiral  George  Clinton  came  out  to  succeed  Governor 
Clark,  who  returned  to  England.  His  administration,  which  com- 
prised ten  years,  was  particularly  distinguished  by  a  constant 
struggle  between  the  executive  and  the  assembly.  By  this  time  the 
province  had  entered  upon  a  great  constitutional  revolution,  and 
the  assembly  had  risen  to  a  position  of  decided  influence  and 
power.  As  has  already  been  pointed  out,  the  party  views  between 
the  factions  represented  on  the  one  side  by  William  Morris,  Wil- 
liam Smith,  James  Alexander,  Cadwallader  Colden  and  others, 
and  on  the  other  by  James  DeLancey  and  his  adherents,  still  con- 
tinued to  be  matters  of  inciting  controversy.  At  the  outset. 
Governor  Clinton  attached  the  DeLancey  element  to  him,  and  was 
largely  controlled  by  the  chief  justice.  Later  on,  however,  he 
had  a  falling  out  with  Chief  Justice  DeLancey,  and  denounced 
him  and  his  party  in  no  measured  terms,  as  will  appear  by  one  of 
his  communications  to  the  lords  of  trade : 

"I  must  inform  your  Lordships  that  the  chief  strength  this  faction 

259 


LEGAL  AND  JUDICIAL 

has  gained  proceeded  from,  I  must  confess,  an  imprudent  act  of  my  own 
in  giving  Mr.  DeLancey  commission  to  be  Chief  Justice  of  this  Province 
during  his  good  behavior;  this  has  given  him  the  greatest  influence,  as 
no  man  can  think  himself  safe  from  his  power  when  the  ambition,  the  vio- 
lence, and  the  obstinacy  of  his  temper  is  well  known.  A  governour  they 
expect  can  remain  with  them  but  a  few  years,  but  the  power  of  this  Man 
they  think  is  entailed  upon  them ;  whatever  reason  there  may  be  for  making 
the  Judges'  Commissions  in  England,  in  this  manner,  the  same  reason  may 
not  extend  to  the  plantations,  tho'  I  was  made  to  believe  that  they  did; 
but  the  inconveniences  which  may  arise  from  it  may  be  incomparably  great, 
as  it  is  possible  that  a  Chief  Justice  in  England  can  not  obtain  such  influ- 
ence over  the  Nation  as  a  Chief  Justice  may  over  this  Province,  where 
the  number  of  Men  of  Knowledge  is  very  inconsiderable,  and  by  uniting 
with  the  men  of  politics,  power  and  wealth  make  it  impossible  to  find  any- 
one to  accuse,  try  or  convict  him.  ♦  *  *  The  Chief  Justice  soon  con- 
vinced me  of  my  error,  for  before  that  commission  was  granted,  he  on  all 
occasions,  shewed  himself  ready  to  assist  me  with  his  advice  and  with 
what  influence  he  had,  in  order  to  make  my  administration  easy  to  me, 
and  which  I  have  now  reasons  to  believe  he  only  did  thereby  to  induce  me 
to  grant  this  Commission,  by  which  he  expects  to  secure  to  himself  that 
Power  which  from  his  natural  ambition  he  has  always  aimed  at,  for  as 
soon  as  he  had  obtained  it,  he  put  himself  at  the  head  of  the  Faction, 
whose  views  were  to  distress  me  in  the  administration  and  thereby  to 
compel  me  in  effect  to  put  it  into  their  hands,  and  on  this  occasion  I  must 
remark  *  *  *  that  the  uneasiness  and  distraction  in  government  af- 
fairs in  Mr.  Cosby's  administration  arose  from  Mr.  DeLanccy's  ambition 
to  be  Chief  Justice  and  that  ever  since  he  has  been  in  power  continual 
schemes  have  been  formed  to  weaken  the  authority  and  power  of  every 
governor  in  the  administration  and  to  alter  the  Constitution  of  his  Gov- 
ernment as  will  appear  from  an  attentive  consideration  of  the  acts  of  the 
general  Assembly  in  Mr.  Clark's  administration  and  since  my  arrival."" 

Afterward  Governor  Clinton  put  his  trust  in  Cadwallader 
Colden,  whose  political  star  was  just  then  arising,  and  during 
the  latter  part  of  his  administration  he  was  almost  constantly  in 
warfare  with  the  DeLancey  element,  in  and  out  of  the  assembly. 
Colden  had  become  a  member  of  the  council,  and  Clinton  was 
planning  to  make  the  former  Pennsylvania  doctor  the  lieutenant- 


12.    "Documents   Relative   to   the    Colonial    History   of   the    State   of 
New  York,"  by  E.  B.  O'Callaghan,  M.  D.,  LL.D.,  vol.  VI,  pp.  356-357. 

260 


HISTORY  OF  N EW  YORK 

governor  of  the  province  in  place  of  DeLancey,  and  thus  to  be 
his  successor  as  governor  when  he  should  return  to  England.  In 
this  he  was  not  successful,  for  the  lords  of  trade  in  London  had 
been  influenced  by  DeLancey  and  stood  by  that  official.  Intensely 
mortified  by  his  defeat  in  playing  politics,  Governor  Clinton 
retired  in  1753.  He  was  succeeded  by  Sir  Danvers  Osborn,  who 
arrived  in  New  York,  October  10,  1753,  but  had  no  opportunity 
to  influence  provincial  affairs,  for  he  committed  suicide  two  days 
after  his  arrival. 

James  DeLancey,  the  lieutenant  governor,  attained  another 
height  in  his  ambition  and  became  acting  governor  pending  the 
arrival  of  Sir  Charles  Hardy  in  1755.  During  these  two  years 
the  same  questions  of  legal  jurisdiction  that  had  been  raised 
between  the  assembly  and  former  governors,  still  continued  to 
be  the  perplexing  subject  of  discussion  and  contention.  De- 
Lancey hesitated  in  relation  to  the  chancellorship,  and  it  was  sev- 
eral months  after  he  had  been  inducted  into  office  before  he 
took  the  oath  as  chancellor.  In  the  following  year  he  held  a 
court  of  errors,  and  William  Smith  made  the  point  against  his 
opponent  that  on  account  of  the  incompatibility  between  his  old 
position  as  chief  justice  and  his  new  judicial  office,  his  right  to 
the  former  naturally  became  extinct.  This  was  not  DeLancey's 
point  of  view,  however,  for  later  on,  after  his  successor  had 
arrived,  he  resumed  his  place  on  the  bench  as  chief  justice  and 
also  continued  as  lieutenant  governor.  His  contention  in  this 
matter  was  supported  by  the  lords  of  trade,  and  the  governor 
upheld  him.  William  Smith,  the  historian,  has  left  an  interesting 
account  of  the  proceedings  in  a  case  which  was  brought  before 
Sir  Charles  Hardy,  in  which  the  governor  confessed  his  inabil- 
ity to  officiate  as  chancellor,  and  admitted  his  dependence  upon 
DeLancey. 

261 


LEGAL  AND  JUDICIAL 

When  Sir  Charles  Hardy  accepted  a  naval  command  in 
1757,  the  governorship  devolved  again  upon  DeLancey,  who  this 
time  had  control  of  affairs  until  his  death  in  1760;  then  Cad- 
walader  Colden  became  lieutenant  governor,  and  held  office  until 
Governor  Robert  Monckton  arrived  in  176 1.  The  succeeding 
fifteen  years  under  the  governorships  of  Monckton,  Sir  Henry 
Moore,  the  Earl  of  Dunmore  and  William  Tryon,  were  marked 
by  a  continued  growth  of  the  feeling  for  independence  and  of 
resentment  of  the  province  over  the  arbitrary  measures  imposed 
upon  it  by  England  and  the  king's  representatives  who  were  sent 
to  govern.  At  this  time,  the  acts  of  New  York  assembly, 
together  with  such  statutes  of  England  as  pertained  expressly  to 
the  province,  and  certain  other  English  acts  passed  before  a  gen- 
eral assembly  had  been  permitted  in  New  York,  practically  con- 
stituted the  law  of  the  province.  An  important  question  which 
was  constantly  coming  before  the  courts  was  as  to  what  Eng- 
lish statutes  should  be  considered  in  force  in  the  province.  Upon 
this  point  William  Smith,  said  that 

"the  state  of  our  laws  opens  a  door  to  much  controversy.  The  uncer- 
tainty with  respect  to  them  renders  property  precarious,  and  greatly  ex- 
poses us  to  the  arbitrary  decisions  of  bad  judges.  The  common  law  of 
England  is  generally  received,  together  with  such  statutes  as  were  enacted 
before  we  had  a  legislature  of  our  own.  But  our  courts  exercise  a  sover- 
eign authority  in  determining  what  parts  of  the  common  and  statute  law 
ought  to  be  extended.  *  *  *  In  many  instances  they  have  also  ex- 
tended, as  I  have  elsewhere  observed,  even  acts  of  parliament  passed  since 
we  have  had  a  distinct  legislature,  which  is  adding  greatly  to  our  confu- 
sion."" 

New  York  lawyers  who  were  in  practice  for  the  quarter  of 
a  century  or  more  before  the  Declaration  of  Independence,  were 
men  who,  whether  we  consider  their  learning  in  the  law,  their 


13.     "History  of  the  Province  of  New  York,"  by  William  Smith,  vol. 
I,  p.  309- 

262 


HISTORY  OF  NEW  YORK 

skill  in  forensic  contests,  or  their  liberal  views  and  enlightened 
patriotism  in  matters  of  public  concern,  were  the  equals  of  the 
members  of  any  colonial  bar,  and  worthy  to  be  associated  in 
history  with  their  best  known  immediate  successors — John  Jay, 
James  Duane,  Gouverneur  Morris,  Robert  R.  Livingston,  Jr., 
Egbert  Benson,  Peter  Van  Schaack  and  others  of  less  eminence. 
As  a  body  they  had  a  very  remarkable  influence  in  shaping  the 
popular  opinion  which  gradually  developed  in  opposition  to  the 
increasing  arbitrary  action  of  the  British  king  and  parliament. 
None  more  keenly  appreciated  this  condition  of  affairs  and  the 
outlook  for  the  future  than  the  king's  officers  and  advisers. 
Writing  to  the  Earl  of  Halifax,  February  22,  1765,  Lieutenant 
Governor  Golden  deprecated  the  growing  power  of  the  lawyers : 

"The  dangerous  influence,  which  the  Profession  of  the  Law  has  ob- 
tained in  this  Province,  more  than  in  any  other  part  of  his  Majesty's  Do- 
minions, is  a  principal  cause  of  disputing  appeals  to  the  King,  but  as  that 
influence  likewise  extends  to  every  part  of  the  Administration,  I  humbly 
conceive  that  it  is  become  a  matter  of  State  which  may  deserve  Your 
Lordship's  particular  attention. 

"After  Mr.  DeLancey  had,  by  cajoling  M"".  Clinton,  received  the  Com- 
mission of  Chief  Justice  during  good  behaviour,  the  Profession  of  the  Law 
entered  into  an  Association  the  effects  of  which  I  believe  Your  Lordship 
had  formerly  opportunity  of  observing  some  striking  instances.  They  pro- 
posed nothing  less  to  themselves  than  to  obtain  the  direction  of  all  the 
measures  of  Government,  by  makeing  themselves  absolutely  necessary  to 
every  Governor  in  assisting  him  when  he  complied  with  their  measures  and 
by  distressing  him  when  he  did  otherwise.  For  this  purpose  every  method 
was  taken  to  aggrandise  the  power  of  the  Assembly,  where  the  profession 
of  the  law  must  always  have  great  influence  over  the  members  &  to  lessen 
the  Authority  &  Influence  of  the  Governor.  In  a  Country  like  this  where 
few  men,  except  in  the  profession  of  the  law,  have  any  kind  of  literature, 
where  the  most  opulent  families,  in  our  own  memory,  have  arisen  from 
the  lowest  ranks  of  the  people,  such  an  association  must  have  more  influ- 
ence than  can  be  easily  imagined.  By  means  of  their  profession  they  be- 
come generally  acquainted  with  men's  private  affairs  &  necessities,  every 
man  who  knows  their  influence  in  the  Courts  of  Justice  is  desirous  of  their 
favor  &  afTrayed  of  their  resentment.    Their  power  is  greatly  strengthened 

263 


LEGAL  AND  JUDICIAL 

by  enlarging  the  powers  of  the  popular  side  of  government  &  by  depreciat- 
ing the  powers  of  the  Crown. 

"The  Proprietors  of  the  great  tracts  of  Land  in  this  Province  have 
united  strongly  with  the  lawyers,  as  the  surest  support  of  their  enormous  & 
iniquitous  claims  &  thereby  this  faction  is  become  the  more  formidable  and 
dangerous  to  good  Government.  M^  Prat,  who  had  no  family  or  private 
connections  in  this  Province,  while  he  was  Chief  Justice,  discovered  the 
dangerous  influence  of  this  faction  in  the  Administration  of  Justice,  as 
well  as  otherwise  and  resolved  with  the  assistance  of  the  Government  to 
have  crushed  it;  but  he  was  prevented  by  death.  Many  who  have  either 
felt  or  perceived  the  bad  effects  of  the  domination  of  lawyers  lament  the 
loss  of  such  a  judge. 

"All  Associations  are  dangerous  to  good  Government,  more  so  in  dis- 
tant dominions,  &  Associations  of  lawyers  the  most  dangerous  of  any  next 
to  military. 

"Were  the  people  freed  from  the  dread  of  this  Domination  of  the 
Lawyers  I  flatter  myself  with  giveing  general  joy  to  the  People  of  this 
Province.  I  never  received  the  least  opposition  in  my  administration  ex- 
cept when  I  opposed  the  views  of  this  faction.  I  am  confident  their  views 
may  be  entirely  defeated  by  the  means  I  humbly  proposed  in  my  praeceding 
letter,  with  the  concurrent  assistance  of  his  Majesty's  Ministers  when  it 
becomes  necessary."" 

The  early  lawyers  of  this  century,  beginning  indeed  in  1697, 
before  the  century  really  started,  and  coming  down  to  the  pre- 
revolutionary  period,  were :  David  Jamison,  James  Emott, 
Thomas  Weaver,  John  Bridges,  Robert  Milwood,  May  Bickley, 
Jacob  Regnier,  Roger  Mompesson,  Tobias  Boel,  Joseph  Murray, 
John  Chambers.  Abraham  Lodge,  Richard  Nicolls,  James  Alex- 
ander, William  Smith,  Daniel  Horsmanden,  Lancaster  Green, 
Elisha  Parker,  John  Burnet,  Samuel  Clowes,  William  Searle, 
John  McEvers,  Jr.,  John  Van  Cortlandt,  John  Alsop,  Augustus 
Van  Cortlandt,  Lambert  Moore,  Whitehead  Hicks,  Benjamin 
Kissam,  Benjamin  Helme,  Rudolphus  Ritzema,  Philip  Living- 
ston, Jr.,  Richard  Harrison,  Thomas  Jones,  Philip  J.  Livingston, 


14.     "Documents   Relative   to  the   Colonial    History   of   the   State   of 
New  York",  by  E.  B.  O'Callaghan,  M.  D.,  LL.D.,  vol.  VII,  p.  705- 

264 


HISTORY  OF  N EfV  YORK 

John  William  Smith,  John  D.  Crimshire,  David  Matthews,  Sam- 
uel Jones,  John  Jay,  John  Morin  Scott  and  Peter  Van  Schaack. 

With  the  breaking  out  of  the  Revolution,  the  courts  in  New 
York  city  came  to  an  end.  While  Washington  occupied  the  city 
in  the  earlier  months  of  1776,  he  interferred  in  no  way  with  the 
local  magistrates.  General  Howe,  upon  taking  the  city  in  Sep- 
tember of  that  year,  shut  up  the  civil  courts,  and  everywhere 
within  the  British  lines — that  is,  Long  Island,  Staten  Island,  Man- 
hattan Island,  and  in  a  good  part  of  Westchester — the  inhabi- 
tants were  deprived  of  all  court  protection  or  redress.  A  con- 
dition of  anarchy  sprang  up,  and  in  their  distress  upward  of  a 
thousand  persons  within  the  British  lines  signed  a  petition  ad- 
dressed to  Lord  Howe,  October  16,  1776,  praying  that  he  would 
"Restore  this  City  &  County  to  his  Majesty's  Protection  and 
Peace,"  that  is,  would  re-establish  civil  power  in  the  place  of  mili- 
tary rule.  Among  the  signers  of  this  petition  were  Chief  Justice 
Horsmanden,  Justices  Ludlow  and  Hicks,  and  such  leading  law- 
yers as  Samuel  Jones,  John  Tabor  Kempe  and  Benjamin  Kissam, 
all  of  the  Episcopal  and  some  of  the  other  clergy,  and  several 
leading  merchants.  But  General  Howe  did  not  deign  to  answer 
the  petition. 

Outside  the  British  lines  little  serious  attempt  was  made  to 
remedy  the  inconvenience  occasioned  by  a  lack  of  courts  of  jus- 
tice. As  the  authority  of  the  royal  government  declined,  disor- 
ders increased.  Many  of  the  local  judges  and  other  civil  officers 
were  loyalists,  and  the  patriots  either  ignored  or  openly  opposed 
any  attempts  that  they  made  to  execute  the  duties  of  their  offices. 
On  the  other  hand,  those  who  were  known  to  be  on  the  patriot 
side  were  generally  recognized  and  obeyed.  Old  forms  of  pro- 
cess for  the  recovery  of  debts  and  the  punishment  of  crimes  were 

265 


LEGAL  AND  JUDICIAL 

continued,  and  in  some  of  the  counties  measures  were  taken  to 
fix  local  and  temporary  regulations. 

In  1780,  when  General  Robertson  came  to  succeed  General 
Tryon  as  civil  governor,  "Courts  of  Police"  were  established,  and 
a  pretense  was  made  of  re-establishing  the  supreme  court.  Chief 
Justice  Horsmanden  and  Justice  Hicks  were  dead,  leaving  Jus- 
tices Ludlow  and  Jones,  who  had  adhered  to  the  royalist  cause. 
But  these  were  both  passed  over,  and  the  younger  William  Smith, 
afterward  the  first  historian  of  the  province,  was  elevated  to  the 
position  of  chief  justice,  at  a  salary  of  £500  sterling.  He  was 
appointed,  says  Judge  Jones,  "at  a  time  when  no  law  but  Military 
and  Police  law  existed,  when  not  a  Court  of  Justice  under  the 
jurisdiction  of  Britain  was  open,  and  when  there  was  no  more 
occasion  for  a  chief  justice  than  there  was  for  a  Bishop  or  a 
Pope."  He  has  never  been  recognized  as  a  member  of  the  pro- 
vincial supreme  court,  for  the  reason  that  he  was  appointed  after 
the  Declaration  of  Independence. 


266 


CHAPTER  VII 
The  English  Colonial  Courts 


CHAPTER  VII 

The  English  Colonial  Courts 

1665—1777 

G0VERN"0R  NICOLLS'  COURT  OF  ASSIZE — AN  EARLY  WITCHCRAFT 
TRIAL — INSTITUTION  OF  THE  SUPREME  COURT  AND  ITS  NOTABLE 
HISTORY — DISTINGUISHED  JUSTICES  OF  THE  PERIOD — THE 
COURT  OF  OYER  AND  TERMINER — THE  COURT  OF  CHANCERY 
AND  THE  EXCHEQUER  COURT — DIVORCE  JURISDICTION — COURT 
OF  PROBATE  SUCCEEDS  THE  ORPHAN  MASTERS  COURT  OF  THE 
DUTCH  PERIOD THE  SESSIONS  AND  THE  TOWN  COURTS — AT- 
TORNEY GENERALS,   SURROGATES,  AND  OTHER   COURT  OFFICERS. 

One  of  the  first  acts  of  Governor  Richard  Nicolls  after  he 
had  poHtely  turned  out  Stuyvesant,  made  over  New  Amsterdam 
into  New  York  and  estabHshed  English  rule,  was  to  create  a 
general  court  of  assize,  to  be  the  supreme  judicial  tribunal  of  the 
colony.  Under  the  Dutch,  as  we  have  already  seen,  the  highest 
judicial  offices  were  exercised  by  the  director  general  and  his 
council,  and  it  was  as  a  substitute  for  this  that  Nicolls  ordained 
the  court  of  assize.  Some  authorities^  have  held  that  this  court 
was  an  entirely  new  idea  of  the  English,  and  that  also  it  had  its 
origin  in  the  Duke's  Laws.  Neither  of  these  views  is  correct. 
In  the  Duke's  Laws  there  was  no  clause  creating  this  court,  but 
simply  a  clause  fixing  its  sessions.  As  a  matter  of  fact,  the 
establishing  of  the  Duke's  Laws  and  the  creating  the  court  of 
assize,  both  by  act  of  Governor  Nicolls,  were  practically  con- 


I.    "History  of  the  Province  of  New  York,"  by  William  Smith,  pp. 
36  and  45. 

269 


LEGAL  AND  JUDICIAL 

temporaneous,  and  they  were  independent.  In  creating  this  court 
Nicolls  simply  followed  the  Dutch,  changing  the  name  rather  than 
the  form  of  a  tribunal  which  had  long  existed  in  New  Netherland. 
On  this  point,  the  English  historian  George  Chalmers  has  said: 

"Prudently  copying  what  had  been  already  established  by  the  Dutch, 
he  erected  a  court  of  Assizes,  composed  of  the  governor,  the  council,  the 
justices  of  the  peace;  which  was  invested  with  every  power  in  the  colony, 
legislative,  executive  and  judicial.' 

"Having  adopted  with  commendable  policy  the  prior  customs  of  the 
Dutch,  he  continued  the  court  of  Assizes,  which,  composed  of  the  gover- 
nor and  council  and  the  justices  of  the  peace,  was  invested  with  legislative, 
judicial  and  executive  power.'" 

This  court  of  assize  was  a  court  of  equity  as  well  as  of  com- 
mon law,  with  both  original  and  appellate  jurisdiction,  having 
original  jurisdiction  of  all  criminal  prosecutions  and  in  all  civil 
cases  in  which  the  action  might  be  to  recover  above  £20,  and  being 
the  final  court  of  appeals  except  to  the  crown.  It  was  composed 
of  the  governor  and  his  council,  and  two  justices  of  the  peace 
from  each  of  the  several  precincts  or  ridings  where  courts  of  ses- 
sions were  held.  This  addition  of  the  justices  to  make  up  the 
bench  was  a  distinct  change  from  the  Dutch  practice,  where  the 
highest  tribunal  was  composed  alone  of  the  director  general  and 
his  councillors.  By  virtue  of  their  offices  as  justices  of  the  peace, 
the  mayor,  recorder,  and  the  aldermen  of  New  York,  sat  in  the 
sessions  of  the  court.  It  does  not  appear,  however,  that  the 
justices  who  resided  at  a  distance  were  in  the  general  habit  of 
attending.  Probably  their  attendance  was  optional,  or  perhaps 
subject  to  the  summons  of  the  governor.    The  jurisdiction  of  the 


2.  "Political  Annals  of  the  Present  United  Colonies",  by  George 
Chalmers,  London,  1780,  vol.  I,  p.  575. 

3.  "An  Introduction  to  the  History  of  the  Revolt  of  the  Colonies," 
by  George  Chalmers,  London  1782,  vol.  I,  p.  no;  Ibid,  Boston  1845,  vol. 
I,  p.  117. 

270 


HISTORY  OF  NEW  YORK 

court  was  co-extensive  with  the  duke  of  York's  possessions, 
which  included  Pemaquid  in  Maine,  Martha's  Vineyard  and  Nan- 
tucket in  Massachusetts,  Fisher's  and  Gardner's  Island  and  sev- 
eral towns  in  Connecticut,  Delaware  and  New  Jersey,  and  New 
York  as  far  north  as  Schenectady. 

In  addition  to  its  purely  judicial  functions,  the  court  was 
invested  with  the  "supreme  power  of  making,  altering  and  abol- 
ishing any  laws."  It  was,  however,  in  no  respect  an  advance 
towards  democracy,  nor  in  any  popular  sense  was  it  a  legislative 
body,  although  it  exercised  legislative  powers.  It  was  altogether 
devoid  of  representative  character  so  far  as  the  people  were  con- 
cerned, thus  conspicuously  differing  from  the  popular  assemblies 
that  were  summoned  under  the  Dutch  governors ;  its  members 
being  entirely  dependent  upon  the  will  of  the  governor,  naturally 
were  expected  to  conform  to  his  wishes,  in  all  their  deliberations. 
In  addition  to  other  functions,  it  became  a  vehicle  to  promulgate, 
and  record  the  ordinances  issued  by  the  duke  of  York  in  England 
and  his  deputy  and  councillors  in  New  York. 

Methods  of  procedure  for  this  court  were  laid  down  in  a 
section  of  the  Duke's  laws.  Sessions  were  ordered  to  be  held 
once  a  year  in  New  York.  Whenever,  on  the  information  of  an 
aggrieved  person,  the  governor  was  satisfied  of  the  necessity  of 
having  justice  done  before  the  next  annual  meeting  of  the  court, 
he  issued  a  warrant  for  a  special  session  to  try  the  case;  or,  on 
an  information  exhibited  to  him  of  a  public  offense,  like  a  viola- 
tion of  the  navigation  laws,  or  a  capital  crime  certified  to  him 
by  the  court  of  sessions,  he  issued  a  commission  generally  ad- 
dressed to  the  mayor  and  aldermen  for  a  court  of  oyer  and  ter- 
miner to  try  the  offender,  where  more  than  two  months  would 
elapse  before  the  next  session  of  the  court  of  assize. 

The  method  of  procedure  in  this  court  has  been  well  sum- 

271 


LEGAL  AND  JUDICIAL 

marized  by  Judge  Adolph  J.  Rodenbeck,  of  the  court  of  claims, 
and  from  his  manuscript  the  following  digest  has  been  made.* 

Causes  were  tried  by  a  jury,  at  first  consisting  of  six,  but 
later  of  twelve  members,  and  this  feature  was  not  confined  to 
original  cases,  but  was  extended  to  matters  coming  on  appeal 
from  the  lower  court,  in  cases  where  new  evidence  was  taken. 
No  justice  of  the  peace  who  had  voted  in  the  inferior  court  in  a 
case  appealed  to  the  assize  had  a  vote  on  the  appeal,  and  in  all 
cases  of  appeal  the  court  was  required  to  judge  the  case  ac- 
cording to  former  evidence  and  no  other,  unless  some  material 
witness  was  not  in  the  country  at  the  time  of  the  trial  in  the  lower 
court,  or  was  necessarily  hindered  from  giving  evidence  thereat, 
and  where  matters  of  fact  were  found  to  agree  with  the  lower 
court  and  the  judgment  was  according  to  law,  not  to  revoke  the 
judgment  or  sentence  appealed  from,  but  to  abate  or  increase  it 
as  should  be  judged  right.  Appellants  were  required  to  submit 
security  for  the  prosecution  of  the  appeal  and  for  payment  of 
damages  to  the  respondent  in  case  the  judgment  was  sustained. 
All  appeals  were  made  by  petition,  and  the  appellant  was  re- 
quired to  file  with  the  clerk  of  the  court  from  which  the  appeal 
was  taken,  six  days  before  the  beginning  of  the  assize,  a  brief 
statement  of  the  grounds  upon  which  he  appealed.  This  state- 
ment was  transmitted  to  the  appellate  court  and  a  copy  was  fur- 
nished to  the  respondent.  If,  as  the  Duke's  Laws  quaintly  phrase 
it,  there  was  "a  dubiousness  in  the  expression  of  the  law,"  an 
appeal  would  lie  to  the  assize  from  the  sessions. 

Concerning  this  judicial-legislative  body  one  of  New  York's 
historians  has  said : 


4.  "History  of  Statute  Law  (Ms.).  Period  from  West  India  Company, 
1609  up  to  the  establishment  of  the  Provincial  Government,  1770,"  by 
Adolph  J.  Rodenbeck. 

272 


HISTORY  OF  NEfV  YORK 

"The  governor  and  his  council  remained  the  real  lawmakers  as  well 
as  the  interpreters  of  the  laws  they  made.  Before  long,  it  is  true,  the  court 
of  assize  deliberated  with  closed  doors  upon  the  general  concerns  of  the 
province  and  made  such  changes  in  the  laws  as  were  thought  proper.  But 
the  Duke  of  York,  who,  by  his  patent,  had  'full  and  absolute  power'  dis- 
approved of  legislative  assemblies  as  inconsistent  with  the  form  of  govern- 
ment he  had  established  in  his  province.  Yet  he  supposed  no  harm  and 
much  good  might  result  from  the  justices  being  allowed  once  a  year  to 
meet  with  the  governor  and  his  council  and  make  desirable  changes  in 
the  laws  which,  after  all,  were  subject  to  his  own  approval.  These  justices 
he  complacently  assumed,  would  be  chosen  by  the  people  themselves  as 
their  representatives  if  another  constitution  were  allowed.  Moreover  the 
court  of  assize  was  the  most  convenient  place  for  the  publication  of  any 
new  lews  or  of  any  business  of  general  concern.  In  establishing  that  court 
the  duke's  deputy  did  not  concede  any  political  privileges  to  the  people.  All 
its  officers  were  his  own  subordinates;  none  of  them  his  colleagues.  Ni- 
colls  was,  and  continued  to  be,  a  provincial  autocrat  who  exercised,  indeed, 
his  delegated  powers  with  the  prudence  and  moderation  which  belonged  to 
his  character,  but  who,  in  adroitly  allowing  his  official  dependents  appar- 
ently to  have  with  himself  the  responsibility  of  legislation  did  not  in  the 
least  curtail  his  own  vast  authority."" 

The  first  meeting  of  this  general  court  of  assize  was  held  in 
tlie  fort  in  New  York  on  the  last  Thursday  of  September — 
being  the  28th  day  of  the  month — 1665,  and  it  remained  in  ses- 
sion until  October  of  the  same  year.  At  this  meeting  various 
amendments  to  the  Duke's  Laws  were  adopted,  and  several 
sachems  of  the  Long  Island  Indians  appeared  and  agreed  to  sub- 
mit to  the  English  authorities.  The  court  was  not  convened  in 
1673  for  the  very  good  reason  that  the  province  had  been  recap- 
tured by  the  Dutch  in  September  of  that  year  and  was  held  by 
them  until  October  of  1674.  During  that  time  the  old  court  of 
burgomasters  and  schepens  was  revived.  Whether  the  court  was 
immediately  re-established  after  the  re-occupation  of  New  York 
by  the  English  in  October,  1674,  is  not  known.    Its  records  are  in 


5.    "History  of  the  State  of  New  York",  by  J.  R.  Brodhead,  vol.  II,  pp. 
63-64. 

18 


LEGAL  AND  JUDICIAL 

two  volumes.  One  volume  covers  the  period  from  September  28. 
1665,  to  December  7,  1672,  and  this  is  in  the  State  Library  in 
Albany ;  the  second  volume  covers  the  period  from  October  6, 
1680,  to  October  6,  1683,  and  is  in  the  library  of  the  New  York 
Historical  Society.  It  is  not  known  that  any  records  of  the  court 
for  the  period  between  October,  1674,  and  October,  1680,  are 
now  in  existence.  The  records  of  the  court  of  burgomasters  and 
schepens  which  existed  in  the  time  intervening  between  the  two 
English   occupations   are   in   the  city   hall   of   New   York   City. 

The  earlier  records  of  the  court  are  in  the  handwriting  of 
Matthias  Nicolls,  a  namesake  and  perhaps  a  relative  of  Governor 
NicoUs,  with  whom  he  came  out,  and  who  appointed  him  a  mem- 
ber of  his  council  and  secretary  of  the  province.  As  secretary 
he  was,  ex  officio,  clerk  of  the  court.  By  virtue  of  his  office  he 
was  entitled  to  sit  in  courts  of  sessions  in  the  several  ridings,  and 
frequently  did  so  in  Queens  county,  where  he  was  a  large  land 
owner.  He  was  mayor  of  New  York  in  1672,  speaker  of  the 
assembly  of  1683,  and  was  on  a  commission  of  oyer  and  terminer 
the  same  year.  He  was  a  barrister  of  Lincoln's  Inn,  a  man  of 
character  and  capacity,  and  was  highly  esteemed. 

The  minutes  of  the  court  generally  give  a  very  good  idea  of 
the  merits  of  the  controversies  that  were  before  it.  and  throw 
strong  light  upon  the  social  and  economic  life  of  the  province  at 
that  time.  For  the  most  part  the  verdicts  seem  to  have  been  just, 
but  sometimes  they  were  set  aside  by  the  governor  and  council, 
in  consideration,  as  the  record  says,  of  "the  equity  of  the  case." 
Thus,  on  the  first  day  of  the  first  term  of  the  court,  September 
28,  1665,  the  case  of  John  Richbell  against  the  inhabitants  of  the 
town  of  Huntington  was  tried  before  a  full  bench.  Governor 
Nicolls  presiding,  and  a  jury  of  seven.  John  Rider  appeared 
for    the    plaintiff,    who,    the    record    says,    "declares    upon    an 

274 


HISTORY  OF  N  EfV  YORK 

account  of  trespass  for  that  the  clefts'  have  given  plaintiff  unjust 
molestation,  in  the  possession  of  a  certain  parcel  of  land,  com- 
monly called  Horse  Neck,^  to  his  damage,  *  *  *  whereupon 
he  brings  his  suit."  The  plaintiff  proved  his  title  through  mesne 
conveyances  from  one  Daniel  Whitehead,  "who  was  the  first 
purchaser  thereof  from  the  natives" ;  he  then  proved  a  subse- 
quent "confirmation  thereof  from  the  Grand  Sachem  Wyan- 
dance,  which  was  produced."  The  plaintiff  having  rested,  "Mr. 
Leveredge,  attorney  for  the  defendants,  in  answer  to  the  pl't's 
declaration,  denies  the  unjust  molestation,  and  pretends  the  want 
of  timely  benefit  of  the  declaration.  He  argues  the  def'ts  title 
to  Horse  Neck  to  be  more  valid,  as  being  more  ancient  then  the 
pl't's.  The  town  of  Huntington  founded  its  title,  through  mesne 
conveyances,  from  the  founders  of  Oyster  Bay,  who  purchased 
large  tracts  of  land  in  the  neighborhood  from  the  natives,  long 
before  the  Grand  Sachem  Wyandance's  confirmation  of  the  deed 
to  the  plaintiff's  grantor.  But  the  great  defect  in  defendant's 
case  was  that  Horse  Neck  was  not  mentioned  by  name  in  the 
Oyster  Bay  deed,  and  plaintiff,  in  rebuttal,  showed  that  it  was 
reserved  by  the  Indians  at  their  sale,  for  hunting,"  by  the  tes- 
timony of  several  of  the  original  purchasers  of  the  Oyster  Bay 
and  Huntington  land.     The  record  proceeds : 

"After  a  long  debate  of  the  cause  on  both  parts  it  was  referred  to  the 
jury  who  next  morning  brought  in  their  verdict  as  followeth,  viz.  'That 
upon  serious  consideration  of  the  cause  depending  between  Mr.  Richbell 
and  the  town  of  Huntington,  weighing  all  the  evidence,  we  find  for  the  de- 
fendant, we  finding  that  the  ancient  deed  is  the  right  of  the  town  of 
Huntington,  wherein  we  find,  by  the  bounds  of  Huntington's  deed  and  by 


6.  The  land  in  suit,  still  called  Horse  Neck,  is  in  the  town  of 
Greenwich,  Connecticut,  on  the  north  shore  of  Long  Island  Sound,  oppo- 
site to  Huntington,  on  the  south  shore.  At  that  time  the  line  dividing 
New  York  from  Connecticut  was  in  dispute,  but  New  York  claimed 
further  east  than  Horse  Neck. 

275 


LEGAL  AND  JUDICIAL 

evidence  that  Horse  Neck  (which  is  in  the  controversy)  be  within  the 
bounds  of  Huntington's  deeds,  unless  further  light  can  be  made  appear  un- 
to us  by  the  honored  governor  and  council,  and  that  the  plaintiff  shall  pay 
all  costs,  and  charges  depending  upon  this  suit.  *  *  *  The  Court  hav- 
ing heard  the  case  in  difference  between  the  pl't  and  defendants  debated  at 
large,  concerning  their  title  to  a  certain  parcel  of  land  commonly  called 
Horse  Neck,  and  having  also  seen  and  perused  their  several  writings  and 
evidences  concerning  the  same,  it  was  committed  to  a  jury  who  brought  in 
their  verdict  for  the  defendants,  upon  which  the  court,  demurring,  did  ex- 
amine further  into  the  equity  of  the  cause  and  upon  mature  and  serious 
consideration,  do  find  that  the  said  parcel  of  land  called  Horse  Neck  doth 
of  right  belong  to  the  pl't,  it  being  purchased  by  the  said  pl't  for  a  valuable 
consideration,  and  by  the  testimony  of  the  first  purchasers  under  whom  the 
defendants  claim  was  not  conveyed  or  assigned  by  them  to  the  defendants 
with  their  other  lands  upon  which  and  divers  other  weighty  considerations 
the  court  doth  agree  that  the  said  parcel  of  land  called  Horse  Neck  doth 
of  right  belong  and  appertain  unto  the  plaintiff  and  his  heirs.  And  it  is 
hereby  ordered,  that  the  high  sheriff  or  under  sheriff  of  the  North  Riding 
of  Yorkshire  upon  Long  Island,  do  forthwith  put  the  said  plaintiff,  or  his 
assigns,  in  possession  thereof.  And  all  persons  are  hereby  required  to 
forbear  giving  the  said  pl't  or  his  assigns  any  molestation  in  the  peaceable 
and  quiet  enjoyment  of  the  premises." 

Another  interesting  case  heard  at  the  first  session  of  this 
court  was  that  of  Ralph  Hall  and  his  wife  Mary  Hall,  of 
Seatallcott,  Long  Island,  who  were  charged  with  witchcraft. 
Hall  and  his  wife  were  arraigned  before  the  court  on  the  second 
day  of  October.  The  constables  and  overseers  of  Seatallcott,  in 
the  East  Riding  of  Yorkshire  on  Long  Island,  charged  that  they, 

"by  some  detestable  and  wicked  arts  commonly  called  witchcraft  and 
sorcery  did  (as  is  suspected)  maliciously  practice  and  exercise  at  the  said 
town  of  Seatallcott  (Brookhaven)  &c.,  on  the  person  of  George  Wood,  late 
of  that  place,  by  which  wicked  and  detestable  arts,  the  said  George  Wood 
(as  is  suspected)  most  dangerously  and  mortally  sickened  and  languished 
and  not  long  after,  by  the  aforesaid  wicked  and  detestable  arts,  the  said 
George  Wood  (as  is  likewise  suspected)  died." 

There  was  a  second  count  for  bewitching  the  infant  child  of 
the  widow  of  said  George  Wood.     Both  prisoners  pleaded  not 

276 


HISTORY  OF  NEW  YORK 

guilty,  and  "threw  themselves  to  be  tried  by  God  and  the  coun- 
try." The  record  says  that  "thereupon  several  depositions,  accus- 
ing the  prisoners  of  the  facts  for  which  they  were  indicted,  were 
read,  but  no  witnesses  appeared  to  give  testimony  in  court  viva 
voce."  The  case  was  tried  before  a  jury  composed  of  Thomas 
Baker  of  East  Hampton,  foreman ;  Captain  John  Symonds  of 
Hempstead;  Mr.  Hallett  and  Anthony  Waters  of  Jamaica;  Mr. 
Nicolls  of  Stamford;  Balthazar  de  Haart,  John  Garland,  Jacob 
Leisler,  Antonio  de  Mill,  Alexander  Munro  and  Thomas  Searle 
of  New  York.    The  jury  brought  in  the  following  verdict: 

"Wee  have  seriously  considered  the  Case  committed  to  our  Charge, 
against  y®  Prison"  at  the  Barr,  and  having  well  weighed  y^  Evidence,  wee 
finde  that  there  are  some  suspitions,  by  the  Evidence,  of  what  the  woman  is 
Charged  with,  but  nothing  considerable  of  value,  to  take  away  her  life.  But 
in  reference  to  the  man,  wee  finde  nothing  considerable  to  charge  him 
with." 

The  record  proceeds: 

"The  court  thereupon  gave  this  sentence,  that  the  man  should  be 
bound  body  and  goods  for  his  wife's  appearance  at  the  next  session,  and  so 
on  from  session  to  session,  as  long  as  they  stay  within  this  government,  in 
the  meanwhile  to  be  of  y^  good  Behavior." 

So  they  were  returned  into  the  sheriflf's  custody,  and  upon 
entering  into  a  "recognizance,,'  according  to  the  sentence  of  the 
court,  they  were  released.  On  August  21,  1688,  Governor  Nicolls, 
just  before  his  departure  for  England,  gave  them  following  re- 
lease, from  their  recognizance: 

"These  are  to  certify  to  all  whom  it  may  concern,  that  Ralph  Hall  and 
Mary,  his  wife,  (at  present  living  upon  Miniford's  Island,)  are  hereby  re- 
leased and  acquitted  from  any  and  all  recognizances,  bonds  of  appearance 
or  other  obligations  entered  into  by  them  or  either  of  them,  for  the  peace 
of  good  behavior,  upon  account  of  any  accusation  or  indictment  of  witch- 

277 


LEGAL  AND  JUDICIAL 

craft,  brought  into  the  Court  of  Assizes  against  them  in  the  year   1665; 
there  having  been  no  direct  proofs  nor  further  prosecution  of  them  since.'" 

It  is  worthy  of  note  that  the  laws  which  then  existed  in  New 
England  against  witchcraft  were  not  included  in  the  Duke's 
Laws.  The  disposition  of  the  authorities  and  the  people  of 
New  York  regarding  the  subject  of  witchcraft  is  clearly  shown 
by  the  fact  that  in  the  instance  of  the  trial  just  noted,  the  ac- 
cused were  not  arraigned  for  witchcraft,  but  for  murder,  although 
the  witchcraft  accusation  was  included.  Furthermore,  neither  of 
the  accused  was  convicted.  This  was  twenty-three  years  before 
the  witchcraft  superstition  spread  over  Eastern  Massachusetts, 
and  the  action  of  the  New  York  court  is  in  striking  contrast  to 
the  later  proceedings  of  the  Massachusetts  judiciary  in  relation  to 
the  same  subject. 

A  similar  case  came  before  this  court  in  1670  and  was  dis- 
posed of  in  like  lenient  manner.  Some  inhabitants  of  West- 
chester complained  to  the  court  that  Katherine  Harrison,  widow, 
late  of  Wethersfield,  Connecticut,  "being  reputed  to  be  a  person 
lyeing  under  ye  Supposicon  of  witchcraft,"  had  settled  in  that 
town  and  intended  to  remain  there.  In  July  the  governor  ordered 
her  to  remove,  but  it  appears  that  she  paid  no  attention  to  this 
order,  and  a  month  later  she  was  summoned  by  the  governor  to 
appear  with  her  accusers  in  court,  where  he  said  "I  shall  endeavor 
a  composure  of  these  differences  between  them."  At  this  hearing 
the  case  was  continued  because,  as  the  record  has  it :  "upon  sus- 
pition  of  witchcraft  reasons  whereof  do  not  so  clearly  appear." 
At  the  meeting  of  the  court  on  October  i  of  the  same  year,  this 
disposition  was  made  of  the  case : 


7.    "Documentary    History   of   the    State   of    New    York,"   by   E. 
O'Callaghan,  M.  D.,  LL.D.,  vol.  IV.  pp.  85-86. 

278 


HISTORY  OF  NEJV  YORK 

"In  tlie  case  of  Katherine  Harryson  Widdow  who  was  bound  to  the 
good  Behaviour  upon  Complt  of  some  of  the  Inhabitants  of  Westchester 
until  ys  holding  of  the  Court.  It  is  ordered,  that  in  regard  there  is  noth- 
ing appears  against  her  deserving  the  continuance  of  that  obligacon  shee  is 
to  bee  releast  from  it,  &  hath  Liberty  to  remaine  in  the  Towne  of  West- 
chester where  shee  now  resides,  or  any  where  else  in  the  Governm* 
during  her   pleasure.'" 

The  province  of  the  members  of  this  court  to  exercise  legis- 
lative powers  was  often  recognized  by  the  Duke  of  York,  and  he 
especially  referred  to  this  whenever  he  desired  to  restrain  the 
general  assembly  from  encroaching  upon  what  he  considered  his 
proprietary  rights  in  legislation.  In  April,  1675,  in  a  letter  to 
Governor  Andros,  he  refused  his  sanction  to  further  sessions  of 
the  assembly  as  not, 

"Necessary  for  y©  ease  or  redresse  of  any  grievance  yt  may  happen, 
since  yt  may  be  easily  obtained,  by  any  peticon  or  other  addresse  to  you  at 
their  General  Assizes  (wch  is  once  a  yeare)  where  the  same  persons  (as 
Justices)  are  usually  present,  who  in  all  probability  would  be  their  repre- 
sentatives if  another  constitucon  were  allowed.'" 

The  composition  of  this  court  when  the  attendance  of  its 
members  was  complete,  is  shown  by  the  record  of  this  session  of 
October,  1680.  At  that  time  the  members  who  were  present  were 
Governor  Edmund  Andros,  Secretary  Matthias  Nicolls,  Coun- 
selors William  Dyer,  Frederick  Phillipse,  Thomas  Dervall,  and 
Stephen  \'an  Cortlandt,  Mayor  Francis  Rombout,  Aldermen  Wil- 
liam Beekman.  Johannes  Van  Brugh,  Lewis,  Marius,  Verplanck 
and  Wilson,  Richard  Betts,  High  Sheriff  of  Long  Island  or  York- 
shire; Justices  Topping  Arnold,  WoodhuU  and  Wood  of  the  East 
Riding,  Willett  of  the  North  Riding  and  Hubbard,  Elbertsen  and 


8.  "Documentary    History   of   the    State   of    New    York,"    by    E     B 
O'Callaghan,  M.  D.,  LL.D.,  vol.   I,  pp.  87-88. 

9.  "Documents    Relative    to    the    Colonial    History   of    the    State   of 
New  York,"  vol.  Ill,  p.  230. 

279 


LEGAL  AND  JUDICIAL 

Palmer  of  the  West  Riding  of  Long  Island ;  Teller  and  Van  Dyck 
of  Albany;  Delavall  of  Esopus ;  Spaswill,  Browne  and  Parker  of 
New  Jersey;  Gardiner  of  Nantucket  and  Knapton  and  West  of 
Pemaquid.^** 

The  last  session  of  this  court  was  held  October  3,  1683, 
Governor  Dongan  presiding.  By  an  act  of  the  assembly  in  the 
following  year  entitled  "An  Act  to  Settle  Courts  of  Justice," 
this  court,  which  had  stood  for  a  period  of  nineteen  years,  dis- 
appeared, to  give  place,  as  far  as  its  jurisdiction  at  law  was  con- 
cerned, to  the  court  of  oyer  and  terminer.  From  Governor 
Dongan's  report  to  the  Lords  of  Trade  the  reason  of  the  change 
in  the  judicial  establishment  appears  to  have  been  the  difficulty 
of  bringing  together,  from  the  remote  parts  of  the  province,  the 
justices  of  the  peace,  who,  with  the  governor,  composed  the  court. 
The  act  abolishing  the  court  is  the  second  section  of  Chapter  31 
of  the  acts  of  the  second  session  of  the  first  general  assembly, 
passed  October  29,  1684.    It  reads: 

"An  Act  for  the  confirming  all  Judgments  and  proceedings  in  the 
former  Courts,  taking  away  the  General  Court  of  Assizes. 

"And  forasmuch  as  the  General  Court  of  Assizes,  heretofore  held  an- 
nually in  this  Province  is  of  great  charge  and  Expense  to  the  same,  and  by 
reason  of  the  Great  number  of  the  members  thereof  nott  so  fit  &  capable 
to  heare  and  determine  matters  and  Causes  of  Civil  nature,  usually 
brought  to  the  said  Court ;  Bee  itt  enacted  by  the  Authority  of  this  Present 
Assembly;  That  the  said  Court  called  the  General  Court  of  Assizes  and  all 
Jurisdiction  power  and  Authority  belonging  unto  or  used  or  exercised  in 
the  said  Court  or  by  any  the  Judges  Ministers  or  Members  thereof,  bee 
from  the  first  day  of  November  next  ensuing  clearly  and  absolutely  dis- 
solved taken  away  and  determined  and  that  from  and  after  the  said  first 
day  of  November  next  ensuing,  Neither  Judge,  Justice,  Member  or  Minister 
of  the  said  Court  whatsoever  shall  have  any  power  or  Authority  to  heare 
Examine  or  determine  any  matter  or  thing  whatsoever  in  the  said  court 
called  the  General  Court  of  Assizes  or  to  pronounce  or  deliver  any  Judg- 


10.    "History  of  the  State  of  New  York,"  by  J.  R.  Brodhead,  vol.  II,  p. 
336. 

280 


HISTORY  OF  NEW  YORK 

ment,  Sentence  Order  or  decree  or  to  do  any  Judiciall  or  Ministerial!  act  in 
the  same  Court :  provided  always  that  all  actions  suits  or  Complaints  now 
pending  in  the  said  Court  of  Assizes  either  by  Bill,  plaint,  Declaracon,  ap- 
peale,  review,  by  Peticon  to  the  Governor  and  Councell,  or  any  other  ways 
or  means  whatsoever,  shall  bee  ended  determined  and  finished  by  the  High 
Court  of  Chancery." 


From  the  foundation  of  the  colony,  there  had  been  in  some 
form  a  court  which  had  supreme  authority.  Originally  this  was 
the  governor  and  council,  and  in  after  years  the  court  of  assize. 
It  remained,  however,  for  the  general  assembly  of  1691  to  give 
this  tribunal  a  distinctive  existence  and  a  name,  and  precisely 
to  define  its  province  and  its  powers. 

In  the  code  of  civil  procedure  (§  217)  in  the  State  of  New 
York,  it  is  declared  that  the  supreme  court  of  the  state  possesses, 
subject  to  certain  constitutional  limitations,  "all  the  jurisdiction 
which  was  possessed  and  exercised  by  the  supreme  court  of  the 
colony  of  New  York  at  any  time."  This  declaration  refers  to 
the  court,  which  was  established  by  the  act  of  the  general  assem- 
bly of  1691,  passed  May  6,  as  follows,  establishing  courts  of 
judicature : 

"And  that  their  Majestyes  subjects  Inhabiting  within  this  Province 
may  have  all  the  good  proper  and  just  wayes  &  means  for  ye  securing  and 
Recovering  their  just  Rights  and  Demands  within  the  same,  Be  it  further 
enacted,  And  itt  is  hereby  enacted  and  ordained,  by  the  Authority  aforesaid 
that  there  shall  be  held  and  kept  a  Supreame  Court  of  Judicature,  which 
shall  be  Duely  &  Constantly  Kept  att  the  Citty  of  New  Yorke  and  not 
Elsewhere,  att  the  severall  and  Respective  times  hereafter  mentioned. 
And  that  there  be  five  Justices  att  Least  appointed  &  Commissionated  to 
hold  the  same  Court,  two  whereof  together  with  one  Chief  Justice  to  be  a 
Quorum.  Which  Supream  Court  are  hereby  fully  impowered  and  Author- 
ized to  have  Cognizance,  of  all  Pleas,  Civill,  Criminal,  and  Mixt,  as  fully 
&  amply  to  all  Intents  &  purposes  whatsoever,  as  the  Courts  of  Kings 
Bench,  Comon  Pleas,  &  Exchequer  within  their  Majestyes  Kingdome  of 


II.    "The  Colonial  Laws  of  New  York,"  vol.  I,  p.  172. 

281 


LEGAL  AND  JUDICIAL 

England,  have  or  ought  to  have,  In  &  to  which  Supreame  Court,  all  & 
every  person  and  persons  whatsoever  shall  or  may  if  they  shall  soe  see 
meet,  Commence,  or  remove  any  Action,  or  suite  the  Death  or  Damage  Laid 
in  such  Action  or  suit  being  upward  of  Twenty  pounds,  and  not  otherwise, 
or  shall  or  may,  by  Warrant,  Writt  of  Error,  or  Certiorari,  Remove  out  of 
any  of  the  Respective  Courts  of  Mayor  &  Aldermen  Sessions  and  Comon 
Pleas  any  Judgement  Information  or  Indictment,  there  had  or  depending 
&  may  Correct  Errors  in  Judgment,  or  Reverse  the  same,  if  there  be 
just  cause.  Provided  always,  that  the  Judgment  removed  shall  be  upwards 
of  the  Value  of  Twenty  Pounds.  Always  Provided,  and  be  it  further  En- 
acted by  the  Authority  aforesaid,  this  Supream  Court  shall  be  Duely  &  Con- 
stantly Kept,  once  every  Six  Months,  and  noe  oftener,  that  is  to  say  on 
the  first  Tuesday  of  October,  and  on  the  first  Tuesday  of  Aprill  annually 
and  every  yeare,  att  the  Citty  hall  of  the  said  Citty  of  New  York,  Pro- 
vided they  shall  not  sitt  Longer  than  Eight  Dayes.  And  be  it  Further  En- 
acted by  the  Authority  aforesaid,  that  itt  shall  not  be  Lawfull  for  any 
person  or  persons  whatsoever  appointed,  elected,  or  Commissionated  to  be 
A  Justice  or  Judge  of  the  aforesaid  Courts  to  Execute  or  officiate,  his 
or  their  said  place,  or  office,  untill  such  time  he  or  they  shall  Respectively 
take  the  Oaths  appointed  by  Act  of  Parliament,  to  be  taken  instead  of  the 
Oaths  of  Allegiance  &  Supremacy  and  subscribe  the  Test  in  Open  Court. 
And  Be  it  Further  Enacted  by  the  Authority  aforesaid  that  all  and  every 
of  the  Justices  or  Judges  of  the  severall  Courts  before  mentioned  be  and 
are  hereby  sufficiently  Impowered,  to  make,  order,  and  Establish,  all  such 
Rules  and  Orders  for  the  more  orderly  practizing  &  proceeding  in  their 
said  Courts,  as  fully  and  amply  to  all  intents  and  purposes  whatsoever  as 
all  or  any  of  the  said  Judges  of  the  severall  Courts  of  the  Kings  Bench, 
Comon  Pleas  &  Exchequer  in  England  Legally  doe.  Provided  always,  and 
be  it  Further  Enacted  by  the  Authority  aforesaid  that  no  Persons  Right 
or  property  shall  be  by  any  of  the  aforesaid  Courts  Determined,  except 
where  matter  of  Fact,  are  either  acknowledged  by  the  Partyes,  or  Judge- 
ment be  acknowledged  or  passeth  by  the  Defendants  faults  for  want  of 
Plea  or  Answer,  unless  the  fact  be  found  by  the  verdict  of  Twelve  Men  of 
the  Neighborhood,  as  itt  ought  of  Right  to  be  Done  by  the  Law.'"^ 

It  appears  from  the  foregoing  that  the  Hfe  of  the  court  was 
limited  to  two  years,  but  it  was  empowered  and  authorized  "To 


12.  This  act  is  in  the  parliamentary  roll  manuscript  in  the  State 
Library  at  Albany,  indorsed  "Anno  R.  R.  &  R.  Wjll  et  Mariae  tertio  first 
Assembly  first  session."  It  is  reprinted  in  "Laws  of  New  York"  Brad- 
ford edition,  1694,  p.  2,  in  the  office  of  Secretary  of  State,  Albany,  and  in 
'Colonial  Laws  of  New  York,"  vol.  I,  p.  229. 

282 


HISTORY  OF  N  EIF  YORK 

have  cognizance  of  all  Pleas,  Civil,  Criminal  &  Mixt,  as  fully 
&  amply  to  all  intents  and  purpo.-^es  as  the  Courts  of  Kings 
Bench,  Common  Pleas  &  Exchequer  in  England."  The  members 
of  the  court  were  judges  of  nisi  priiis,  and  annually  performed 
a  circuit  through  the  counties,  for  which  purpose  and  at  which 
time  they  had  from  the  governor  commissions  of  oyer  and  ter- 
miner and  general  gaol  delivery,  and  in  these  commissions  the 
different  county  judges  were  joined. 

By  act  of  the  assembly,  November  ii,  1692,  the  life  of  the 
court  was  extended  for  another  two  years  and  these  additional 
provisions  were  made : 

"that  the  term  of  the  court  should  be  holden  for  the  county  of 
Orange  as  well  as  for  the  city  and  county  of  New  York  on  the  first  Tues- 
day in  April  and  October  annually  in  every  year ;  for  the  city  and  county 
of  Albany  the  first  Tuesday  in  May ;  for  Ulster  and  Duchess  counties,  the 
third  Tuesday  in  May ;  for  the  county  of  Westchester  the  last  Tuesday  in 
June ;  for  Kings  County  the  first  Tuesday  in  August ;  for  Queens  County 
the  second  Tuesday  in  August;  for  Suffolk  County,  the  third  Tuesday  in 
August ;  and  for  Richmond  County  the  second  Tuesday  in  June." 

"that  one  of  the  Justices  of  the  Supreame  Court  Commissionated  as 
aforesaid  Shall  once  in  Every  year  at  the  aforesaid  times  and  places  in 
each  Respective  County  aforesaid  goe  the  circuit,  and  at  the  places  and 
times  aforesaid  there  hold  Supream  Court,  being  then  assisted  by  two  or 
more  of  the  Justices  of  the  Peace  of  the  severall  Respective  County's  where 
the  said  Supream  Court  is  to  be  holden  and  shall  there  hear  and  determine 
all  process  and  pleas  there  depending  as  issued  as  aforesaid.  Always  Pro- 
vided that  in  Such  County  where  there  is  noe  process  Issued  or  pleas  de- 
pending, that  the  Justice  shall  not  be  then  obliged  to  goe  the  Circuit  to  the 
Said  County,  anything  contained  herein  to  the  Contrary  hereof  in  any 
ways  notwithstanding.  Always  provided  the  Sessions  of  the  said  Supream 
Court  Shall  not  continue  nor  hold  longer  at  New  York  than  five  days,  and 
at  the  other  respective  places  in  each  respective  County  than  two  days  and 
no  Longer.'"* 

On  November  24,  1695,  an  act  of  the  assembly  of  that  year 


13.  "Colonial  Laws  of  the  State  of  New  York."  vol.  I,  p.  306. 

14.  "Colonial  Laws  of  New  York,"  vol.  I,  p.  307. 

283 


LEGAL  AND  JUDICIAL 

continued  the  court  for  another  two  years  and  similar  action  by 
the  assembly  on  April  21,  1697,  extended  the  life  of  the  court  for 
a  year  more.  In  1699,  after  the  assembly  had  defeated  a  bill  to 
perpetuate  the  judicial  establishments,  Governor  Bellomont  con- 
tinued the  courts  by  an  ordinance  passed  in  May  and  published 
in  August  of  that  year.^^  The  ordinance  was  practically  in  the 
same  form  and  in  the  same  terms  as  the  act  of  1691.  The  estab- 
lishing of  the  court  by  ordinance  was  not  relished  by  the  people, 
who  regarded  the  assumption,  on  the  part  of  the  crown,  of  the 
right  to  erect  a  court  of  justice,  or  to  revive  a  defunct  court,  as 
a  just  cause  for  grievous  complaint.  Members  of  the  bar  again 
and  again  in  pending  cases  pleaded  against  the  court's  jurisdic- 
tion, that  the  court  had  no  legal  existence  subsequent  to  the 
expiration  of  the  limitation  fixed  by  act  of  assembly.  It  rested 
with  assembly  to  grant  money  for  the  payment  of  the  judges' 
salaries  which  the  governor  could  at  any  time  revoke  or  recall 
their  commissions.  So  it  is  not  surprising  that  the  courts  and 
the  judges  were  the  center  of  discussion  and  warfare  over  the 
relative  rights  of  the  representative  body  of  the  people  and  the 
executive.  Sometimes  the  assembly  refused  money  for  salaries 
and  endeavored  thus  to  influence  appointments  to  the  bench.  The 
history  of  the  court  is  in  large  sense  a  history  of  the  politics  of 
the  century,  and  of  the  gradual  growth  of  that  public  demand 
for  freedom  which  culminated  in  the  revolution. 

The  first  court  was  composed  of  the  chief  justice,  "appointed 
and  commissionated"  for  that  purpose,  with  four  associates  as 
puisne  judges;  the  chief  justice  and  two  associate  judges  made 
a  quorum.  Nine  days  after  the  passing  of  the  act  the  governor 
named  as  chief  justice,  Joseph  Dudley;  as  second  justice,  Thomas 


15.     See  preceding  chapter  of  this  volume,  p.  228. 

284 


HISTORY  OF  NEW  YORK 

Johnson;  and  as  associate  judges,  William  Smith,  Stephen  Van 
Cortlandt  and  William  Pinhorne;  and  shortly  after  James  Gra- 
ham was  appointed  attorney  general.  Of  these  only  Van  Cort- 
landt was  a  native  of  the  province,  and  none  of  them  was  trained 
in  the  law.  Bellomont,  in  his  ordinance  of  1699,  made  no  pro- 
vision for  any  specific  number  of  justices.  In  1701  Chief  Jus- 
tice Attwood  decided  that  he  had  the  power  to  hold  court  alone, 
and  this  he  did  until  late  in  the  same  year  Abraham  de  Peyster 
and  Robert  Walters  were  added  as  his  associates.  As  thus  com- 
posed the  court  remained  for  fifty-seven  years.  In  November, 
1758,  increasing  business  before  the  court  compelled  its  enlarge- 
ment, and  another  judge,  David  Jones,  was  added,  making  four 
in  all,  including  the  chief  justice,  and  this  was  continued  as  long 
as  the  court  lasted.  Except  for  the  lapse  of  a  few  years  dur- 
ing the  administration  of  Governor  Bellomont,  the  court  was  in 
continuous  existence  until  it  was  suspended  at  the  breaking  out 
of  the  revolution. 

The  usual  requirements  for  admission  to  practice  were  a 
college  university  education  and  three  years  study  under  an 
attorney.  If  the  candidate  had  not  the  requisite  education,  then 
he  was  required  to  serve  seven  years  under  an  attorney.  In  either 
case  the  chief  justice  recommended  the  candidate  to  the  governor, 
who  under  his  hand  and  seal  granted  a  license  of  practice.  When 
this  license  was  produced  to  the  court  the  usual  oaths  were 
required  to  be  taken,  and  the  candidate  was  then  declared  to  be 
qualified  to  practice  in  every  court  in  the  colony. 

The  first  chief  justice,  Joseph  Dudley,  remained  in  office 
only  eighteen  months,  from  May  15,  1691,  to  November  11,  1692, 
being  removed  by  Governor  Fletcher  because  he  was  a  non-resi- 
dent. He  was  succeeded  by  his  associate,  William  Smith,  a  native 
of  England,  but  a  resident  of  the  province  since  1686.     After  a 

285 


LEGAL  AND  JUDICIAL 

service  of  eight  years  Smith  was  displaced  for  a  httle  less  than 
a  month  by  Stephen  Van  Cortlandt.  Again  commissioned,  No- 
vember 25,  1700,  he  was  compelled  to  give  way  finally  two  months 
afterward  to  Abraham  de  Peyster,  then  a  puisne  judge,  who  was 
appointed  temporarily  until  the  new  chief  justice,  William  Att- 
wood,  appointed  directly  by  the  crown,  should  arrive  from  Eng- 
land. Within  less  than  a  year  Attwood  fled  the  province  to  escape 
arrest  by  the  new  governor  just  arrived.  William  Smith  was 
restored  to  the  chief  justiceship,  which  he  held  until  another 
English  bred  lawyer  came  over, — John  Bridges,  doctor  of  laws, 
who  was  commissioned  April  5,  1703.  Bridges  died  within  less 
than  a  year,  and  Roger  Mompesson,  a  native  of  England,  a  bar- 
rister, and  at  one  time  recorder  of  Southampton,  was  commis- 
sioned July  15,  1704,  chief  justice  of  New  York  and  New  Jer- 
sey, in  which  latter  province,  or  Philadelphia,  he  resided  at  the 
time.  During  his  tenure  he  claimed  to  have  made  the  practice 
of  the  courts  of  the  province  "more  conformable  to  the  practice 
of  Westminster  Hall  than  any  other  of  her  majesty's  plantations 
in  America."  On  the  death  of  Mompesson  while  in  office,  Lewis 
Morris,  March  13,  1715,  a  native  of  New  York,  but  long  a  resi- 
dent of  New  Jersey,  succeeded  to  the  head  of  the  bench.  Mor- 
ris was  an  ultra  republican,  and  in  New  Jersey  he  had  been  the 
conspicuous  popular  leader  in  the  opposition  to  Governor  Corn- 
bury.  His  judicial  action  in  the  case  of  Governor  Cosby  against 
Rip  Van  Dam  and  his  removal  from  office  have  been  presented 
in  the  preceding  chapter  of  this  work.'*  In  the  same  connec- 
tion has  been  given  an  account  of  the  rise  of  James  DeLancey  to 
be  chief  justice. 

Benjamin  Pratt,  who  succeeded  to  the  position  held  by  De- 
Lancey upon  the  death  of  the  latter  in  1760,  had  not  been  a  mem- 


16.    See  page  248. 

286 


HISTORY  OF  NEW  YORK 

ber  of  the  court  until  he  was  commissioned  chief  justice.  He  was 
a  native  and  a  resident  of  Massachusetts,  and  eminent  for  learn- 
ing in  the  annals  of  the  colony.  His  appointment  was  the  occa- 
sion for  an  outbreak  both  by  the  citizens  and  the  members  of  the 
bar  against  not  only  the  governor  but  also  against  the  new  chief 
justice.  The  real  objection  to  Pratt  was  that  he  was  a  non- 
resident, and  his  appointment  was  a  glaring  example  of  the  exer- 
cise of  the  power  of  the  governor  to  place  on  the  bench  any  indi- 
vidual whom  he  might  desire,  regardless  of  the  wishes  of  the 
people.  Pratt  had  been  commissioned  "during  pleasure"  instead 
of  for  life  during  good  behavior,  as  his  predecessor  DeLancey 
had  been  and  his  acceptance  of  the  commission  on  a  condition 
"contrary  to  New  York  precedent",  was  seized  upon  by  the  fac- 
tion then  in  control  of  the  assembly  as  an  additional  weapon 
against  the  party  "supporting  the  established  constitution."  The 
three  other  judges  of  the  court, — Daniel  Horsmanden,  John 
Chambers  and  David  Jones, — all  of  whose  commissions  were  in 
abeyance  by  reason  of  the  death  of  King  George  II.,  not  only 
were  disappointed  in  not  being  preferred  for  the  first  place,  but 
were  highly  indignant  that  the  new  chief  justice  should  have 
accepted  his  commission  on  other  terms  than  for  good  behavior. 
Judge  Chambers  resigned  his  commission,  and  Judge  Horsman- 
den and  Judge  Jones  refused  to  accept  a  renewal  of  their  com- 
missions on  the  terms  oflfered.  The  assembly  passed  resolutions 
severely  reflecting  upon  the  chief  justice  for  accepting  his  com- 
mission "during  pleasure",  and  inveighing  against  Lieutenant 
Governor  Golden  for  refusing  to  grant  commissions  "during  good 
behavior" — both  Golden  and  Pratt  being  declared  enemies  to  the 
colony,  to  the  government  and  the  constitution,  and  the  threat  was 
made  that  no  salaries  should  be  granted  either  to  Golden  or  to  the 
judges  unless  judicial  commissions  were  to  run  during  good  be- 

287 


LEGAL  AND  JUDICIAL 

havior.  In  the  end,  however,  Colden  succeeded  in  placating  the 
other  judges,  who  consented  to  accept  their  commissions  on  the 
terms  offered,  during  pleasure. 

Pratt  held  office  only  a  year,  for  he  died  in  1762.  His  suc- 
cessor, the  eleventh  and  last  chief  justice  of  the  colonial  period, 
Daniel  Horsmanden,  was  a  native  of  Kent,  England,  and  had 
been  an  associate  judge  of  the  court  since  January  24,  1736. 
When  he  was  advanced  to  the  chief  justiceship,  March  16,  1763, 
he  was  over  seventy  years  of  age,  and  he  continued  in  office  until 
his  death,  after  the  Declaration  of  Independence,  on  September 
20,  1778.  William  Smith,  the  younger  son  of  the  earlier  chief 
justice  of  that  name,  received  the  appointment  of  chief  justice 
during  the  revolution.  In  his  younger  days  he  had  published  a 
"History  of  New  York",  and  was  an  ardent  Whig,  but  when  the 
war  broke  out  he  became  a  loyalist.  It  is  considered  doubtful  if 
he  ever  held  court.  When  the  British  troops  left  the  province 
at  the  close  of  the  war,  he  went  with  them,  and  he  is  not  generally 
accounted  one  of  New  York's  chief  justices. 

When  the  war  for  independence  broke  out,  the  court  was 
composed  of  Chief  Justice  Daniel  Horsmanden  and  Justices 
Robert  R.  Livingston,  George  D.  Ludlow  and  Thomas  Jones. 
The  court  was  divided  in  its  political  sentiments.  Justice  Living- 
ston sided  with  the  colonists,  while  Chief  Justice  Horsmanden 
and  Justices  Ludlow  and  Jones  cast  their  fortunes  with  the  cause 
of  the  King.  Horsmanden  remained  in  New  York  city,  where  he 
exercised  the  duties  of  his  office.  Ludlow  and  Jones  retired  into 
Westchester  county,  where,  in  that  section  held  by  the  British, 
they  continued  their  judicial  work.  After  the  death  of  Horsman- 
den in  1778,  Justice  Ludlow  acted  as  chief  justice  and  continued 
thus  to  act  until  at  the  close  of  the  war  he  left  New  York  for 

288 


HISTORY  OF  NEW  YORK 

Canada.     Both  Ludlow  and  Jones  were  attainted  by  the  State  of 
New  York  in  1779  for  having  adhered  to  the  royal  cause. 

When  the  court  was  organized  in  1691,  only  the  chief  justice 
and  the  second  judge  received  salaries.  The  salary  of  the  chief 
justice  was  one  hundred  and  thirty  pounds,  and  that  of  the  second 
judge  one  hundred  pounds  per  annum;  the  other  members  of  the 
court  and  the  attorney  general  were  not  salaried,  but  in  1693  the 
attorney  general  had  a  salary  of  fifty  pounds.  In  1698  the  salary 
of  the  chief  justice  was  reduced  to  one  hundred  pounds,  but  four 
years  afterward,  in  1702,  it  was  raised  to  three  hundred  pounds, 
with  a  fee  of  ten  shillings  on  the  first  motion  in  every  case ;  at  the 
same  time  the  second  judge  was  awarded  one  hundred  and  fifty 
pounds,  and  the  three  associates  fifty  pounds  each.  In  1765  the 
chief  justice  had  a  salary  of  three  hundred  pounds,  while  the 
allowance  of  the  associate  judges  was  raised  for  riding  circuits 
to  two  hundred  pounds.  After  1744  the  chief  justice  was  to 
receive  five  hundred  pounds  sterling  from  the  crown,  and  in 
addition  three  hundred  pounds  New  York  currency  from  the 
provincial  treasury;  the  salary  of  the  other  judges  remained  at 
two  hundred  pounds  New  York  currency,  equivalent  to  one  hun- 
dred pounds  sterling,  besides  their  fees.  Upon  the  breaking  out 
of  the  revolution  this  salary  arrangement  was  entirely  stopped. 

Following  is  a  list  of  the  chief  justices  and  associates  or 
puisne  judges  during  the  colonial  period  with  the  dates  of  their 
commissions : 

Chief  Justices:  Joseph  Dudley,  May  15,  1691 ;  William 
Smith,  November  11,  1692;  Stephen  Van  Cortlandt,  October  30, 
1700;  William  Smith,  November  25,  1700;  Abraham  de  Peyster, 
January  21,  1701 ;  William  Attwood,  August  5,  1701 ;  William 
Smith,  June  9,  1702;  John  Bridges,  April  5,  1703;  Roger  Mom- 
pesson,  July   15,   1704;  Lewis  Morris,  March   13,   1715;  James 

289 

19 


LEGAL  AND  JUDICIAL 

''DeLancey,  August  21,  1733;  Benjamin  Pratt,  November  11, 
1761 ;  Daniel  Horsmanden,  March  16,  1763. 

Associates  or  Puisne  Judges:  Thomas  Johnson,  IMay  15, 
1691 ;  WiUiam  Smith,  May  15,  1691 ;  Stephen  Van  Cortlandt, 
May  15,  1691 ;  Wilham  Pinhorne,  May  15,  1691 ;  WilHam  Pin- 
horne,  April  3,  1693 ;  Chidley  Brooke,  April  3,  1693 ;  John  Law- 

■  rence,  April  3,  1693 ;  John  Guest,  June,  1698 ;  Abraham  de  Pey- 
ster,  October  4,  1698;  Robert  Walters,  August  5,  1701 ;  John 
Bridges,  June  14,  1702;  Robert  Milward,  April  5,  1703;  Thomas 
Wenham,  April  5,  1703;  James  DeLancey,  June  24,  1731 ;  Fred- 
erick Phillipse,  June  24,  1731 ;  Frederick  Phillipse,  August  21, 
1733;  Daniel  Horsmanden,  January  24,  1736;  John  Chambers, 
July  30,  1 751;  Daniel  Horsmanden,  July  28,  1753;  David  Jones, 
November  21,  1758;  Daniel  Horsmanden,  March  26,  1672;  David 
Jones,  March  31,  1762;  David  Jones,  March  16,  1763;  William 
Smith,  March  16,  1763;  Robert  R.  Livingston,  March  16,  1763; 
George  D.  Ludlow,  December  14,  1769;  Thomas  Jones,  Septem- 
ber 29,  1773;  Wliitehead  Hicks,  February  14,  1776. 

During  the  same  period  the  attorneys  general  were:  James- 

-    Graham,  May  15,  1691 ;  Sampson  Shelton  Broughton,  February 

.  4,  1702;  May  Bickley,  April  18,  1704;  Sampson  Broughton;^'" 
John  Rayner,  March  24,  1708;  David  Jamison,  June  10,. 
1712;  James  Alexander,  July  28,  1721 ;  Richard  Bradley,  March 
II,  1722;  William  Smith,  August  28,  1751 ;  William  Kempe,. 
November  4,  1752;  John  Tabor  Kempe,  July  30,  1759;  James- 
Duane,  1767. 

Under  the  Duke's  Laws  of  1690,  Governor  Nicolls  was  era- 
powered  to  issue  a  commission  of  oyer  and  terminer  to  try 
offenders  in  capital  cases.    By  the  assembly  act  of  1683  provisioite 


17.    Ordered  by  Queen  Anne  to  be  appointed,  but  he  was  never  com- 
missioned. 

290 


HISTORY  OF  NEW  YORK 

was  made  for  a  regular  court  of  oyer  and  terminer  and  general 
gaol  delivery  to  consist  of  one  judge  of  the  supreme  court  and 
four  justices  of  the  peace  especially  commissioned  for  the  pur- 
pose in  each  county  where  the  terms  were  to  be  held.  In  1691 
the  assembly  act  provided  that  a  court  of  oyer  and  terminer  and 
general  gaol  delivery  should  be  held  in  each  circuit,  the  court  to 
be  composed  of  one  of  the  supreme  court  judges  assigned  to  the 
circuit  and  specially  commissioned  by  the  governor,  and  some  of 
the  county  judges  within  the  circuit.  In  the  city  of  New  York 
the  mayor  and  four  aldermen  instead  of  the  county  judges  sat 
with  the  circuit  judge. 

When  on  a  circuit,  the  sheriff  of  the  county  met  the  judge 
and  his  attendants  upon  his  entrance  into  the  county  town  and 
conducted  him  to  his  lodging,  which,  according  to  the  eti- 
quette of  the  time,  was  not  to  be  the  same  as  that  occu- 
pied by  the  lawyers.  Toward  the  end  of  the  colonial  period 
the  judges  began  to  sit  in  gown  and  bands,  though  the  bar 
never  donned  any  distinctive  habit.  Prosecution  was  mainly 
by  information,  by  order  of  the  governor  and  council,  instead  of 
by  indictment  by  a  grand  jury.  Often  prisoners  were  committed 
under  warrants  issued  by  the  council,  of  which  the  judge  who 
might  try  the  prisoner  was  perhaps  a  member.  This  gave  rise  to 
frequent  complaint  and  sometimes  became  the  occasion  of  scan- 
dal. Warrants  were  even  issued  where  the  grand  jury  had  re- 
fused to  bring  in  an  indictment.  In  its  criminal  branch  the  su- 
preme court  of  the  colonial  period  left  a  tarnished  record.  The 
trial,  conviction  and  hanging  of  Leisler  and  Milbourne  in  April, 
1691,  at  a  special  oyer  and  terminer,  composed  of  Joseph  Dudley, 
William  Smith,  and  Frederick  Phillipse,  who  immediately  after 
the  trial  were  commissioned  judges  of  the  newly  erected  supreme 
court  caused  intense  public  feeling  against  the  new  court  and  its 

291 


LEGAL  AND  JUDICIAL 

judges.  The  trial  and  conviction  in  1700  of  Nicholas  Bayard, 
Leisler's  foremost  enemy,  did  not  add  to  the  reputation  of  the 
court  or  make  it  more  popular  with  the  people,  although  the 
result  of  the  trial  was  less  a  miscarriage  than  its  predecessor  had 
been.  Another  and  more  widely  known  trial  in  the  criminal 
branch  of  the  supreme  court  was  that  of  Zenger,  the  printer  of 
the  New  York  Weekly  Journal,  for  seditious  libel  in  1735,  an 
account  of  which  is  given  on  another  page  of  this  volume.^^ 
Less  important  in  vital  interests  and  far-reaching  results  than  the 
Zenger  case,  but  not  less  famous,  and  even  more  discreditable  as 
a  record  of  the  weakness  and  credulity  of  the  judges  and  other 
officers  connected  with  it,  was  the  trial  of  the  alleged  conspirators 
in  the  so-called  negro  plot  of  1741.'*  It  has  been  well  said  of 
this  aflFair: 

"For  its  disregard  of  all  rules  of  legal  evidence,  for  its  prostitutions 
of  the  forms  of  law,  for  the  perpetration  of  cruelty,  for  popular  credulity 
and  cowardice,  for  the  abnegation  of  all  sense  of  mercy,  for  the  oppression 
of  the  weakest  and  most  defenseless,  the  whole  transaction  was  without 
precedent,  and  has  no  parallel  in  any  civilized  Community.** 


In  the  administration  of  justice  by  the  Dutch  in  New  Nether- 
land,  there  was  no  distinction  between  what  might  fitly  be  done 
in  a  court  of  law  and  a  court  of  equity.  All  causes  of  whatsoever 
character,  civil  or  criminal,  were  heard  in  one  tribunal.  It  was 
not  long  after  the  Dutch  New  Netherland  had  become  the  English 
New  York  that  the  need  of  having  a  separate  tribunal  to  supply 
the  defects  not  provided  for,  was  felt.  Gradually  the  increase 
of  wealth  which  came  about  through  commerce  and  speculation 


18.  See  page  252. 

19.  See  page  257. 

20.  "Popular  History  of  the  United  States,"  by  W.  C.  Bryant  and 
A.  Gay,  vol.  Ill,  p.  234. 

292 


I 


HISTORY  OF  NEW  YORK 

m  land  grants,  with  the  attendant  growth  of  famiUes,  gave  rise 
to  controversies  concerning  subjects  of  equity  jurisprudence 
which  the  existing  courts  of  law  had  not  the  power  to  entertain. 
To  meet  this  need,  a  court  similar  in  practice  to  the  English  court 
of  chancery  was  ordained.  Under  the  Duke's  Laws  the  equitable 
jurisdiction  of  the  town  court  was  limited  to  five  pounds,  but  in 
the  courts  of  sessions  in  the  three  ridings  there  was  no  limitation. 
Proceedings  in  equity  were  conducted  by  bill  and  answer.  Wit- 
nesses were  examined  according  to  the  manner  of  the  court  of 
chancery  in  England  at  that  time,  and  all  suits  in  equity  were 
determined  by  the  court  without  the  intervention  of  the  jury. 
This  mode  of  administering  legal  and  equitable  relief  in  one  and 
the  same  tribunal  continued  for  many  years  even  after  the  estab- 
lishment of  the  court  of  chancery  in  1683. 

The  earliest  record  of  a  proceeding  in  chancery  is  cited  by 
Murray  Hoflfman  in  "A  Treatise  upon  the  Court  of  Chancery". 
It  was  during  the  rule  of  Governor  Andros : 

"To  the  Right  Honorble  Major  Edmond  Andross  Esqr  Left  &  Gov- 
erne  Genera'l  of  his  Royal  Highness  his  Territoeries  in  America.  Thomas 
Wandall  Complainant.  Oliffe  Stephens  Deft  And  the  deft  to  ye  Com- 
plaints  bill  humbly  answereth  yt  alt  30  years  last  past  The  Land  in  ques- 
tione  was  by  y^  authority  then  in  being — Ordered  for  a  Lane  or  Alley — 
abt  16  years  within  s<i  tyme  aforementioned — The  2^  ground  by  Ord^  of 
the  Burge  Masters  of  this  City  was  exposed  to  sale — ;  thereupon  this 
Complaint  &  deft  joyntly  purchased  ye  same — ;  &  soon  after  made  eqwale 
divisione  thereof;  upon  the  s<i  ground  this  complaint  hath  built;  &  ever 
since  the  purchase  enjoyed  e  quietly  possesse<i  ye  same — And  all  soe  this 
deft  hath  until  y^  7th  Novembe  1676 — by  virtue  of  his  Title  aforesd  & 
his  quiett  possessione  he  humblt  conceives,  makes  him  an  undoubted  right 
and  y®  Mutual  agreemt  upon  partitione  as  afors^  being  confirmed  by 
a  judgmt  given  In  the  Mayo"  C.  T.  as  p  record  appeers :  In  tend® 
Consideracon  whereof  humbly  prays  y""  Honf  and  hon^le  Bench  to  take  the 
ys  into  yr  Grave  Consideracon  &  be  pleased  to  grant  judgmt  according 
to  Equity  &  Justice  and  this  deft  as  in  duty  bound  shall  pray  &c  (Endorsed) 
The  Answer.    Tho  Wandall  pU  Oloff  Stevens  deft  1677  put  off  by  the  Go." 

293 


LEGAL  AND  JUDICIAL 

In  the  act  of  the  Assembly  of  1683  estabUshing  a  judiciary 
scheme  a  court  of  chancery  was  included : 

"There  shall  bee  a  Court  of  Chancery  within  this  province  which  said 
Court  shall  have  power  to  heare  and  determine  all  matters  of  Equity  and 
shall  be  Esteemed  and  accounted  the  Supreme  Court  of  this  province  And 
be  it  further  Enacted  That  the  Governor  and  Council  bee  the  said  Court 
of  Chancery,  and  hold  and  keep  the  said  Court ;  And  that  the  Governour 
may  Depute  or  nominate  in  his  stead  a  Chancellour,  and  be  assisted  with 
such  other  persons,  as  shall  by  him  bee  thought  fitt  and  Convenient.  To- 
gerther  with  all  necessary  Clerkes  and  other  officers  as  to  the  said  court 
are  needful."" 

By  this  act  the  governor  and  his  council  were  continued  as 
the  court  of  chancery ;  the  only  effect  of  the  act  was  in  giving 
legislative  sanction  to  a  jurisdiction  which  had  hitherto  been 
exercised  as  a  prerogative  of  the  crown.  The  court  of  chancery 
was  ordered  to  be  held  on  the  first  Thursday  of  every  second 
month  in  the  year.  John  Spragg  was  made  master  of  rolls,  and 
John  Knight  and  Recorder  James  Graham  were  its  clerks.  By 
an  act  of  the  assembly  of  1691  the  existence  of  this  court  is 
prolonged : 

"Be  it  further  Enacted  by  the  Authority  aforesaid  that  there  shall  be  a 
Court  of  Chancery  within  this  Province  which  said  Court  shall  have  power 
to  heare  and  determine  all  matters  Equity  and  shall  be  Esteemed  and  ac- 
counted the  High  Court  of  Chancery  of  this  Province:  And  Be  It  Further 
Enacted  by  the  authority  aforesaid  that  the  Governor  &  Councill  be  the 
said  High  Court  of  Chancery,  and  hold  and  Keep  the  said  Court;  and 
that  the  Governour  may  Depute,  Nominate  &  Appoint  in  his  Stead  A 
Chancelor,  and  be  assisted  with  such  other  Persons  of  the  Councill  as  shall 
by  him  be  thought  fitt  and  Convenient,  together  with  all  Necessary  offi- 
cers, Clerks,  and  Registers  as  to  the  said  High  Court  of  Chancery  are 
needful."" 

The  life  of  the  court  thus  established  was  limited  to  seven 


21.  "Colonial  Laws  of  New  York",  vol.  I,  p.  128. 

22.  Ibid.,  vol.  I,  p.  230. 

294 


HISTORY  OF  NEW  YORK 

years.  From  and  after  the  expiration  of  this  time  in  1698  until 
the  end  of  the  colonial  period,  the  only  authority  for  the  exercise 
of  equity  jurisdiction  by  the  successive  governors  was  by  ordin- 
ance, or  executive  order.  From  first  to  last  the  court  was  the 
most  unpopular  judicial  establishment  in  the  colony.  The  oppo- 
sition to  it  was  grounded  on  the  exercise  of  its  powers  by  the 
king's  representatives,  and  not  by  legislative-constituted  judges. 
"The  court  of  chancery  as  held  by  one  man  and  that  man  gener- 
ally a  stranger  to  the  country,  and  always  the  immediate  represen- 
tative of  the  Crown,  was  especially  obnoxious  to  public  preju- 
dice."^ The  governors  in  the  early  years  of  the  century  were 
often  in  doubt  as  to  wisdom  of  exercising  the  powers  thus  granted 
to  them,  and  some  of  them  hesitated  to  carry  out  their  instruc- 
tions to  appoint  the  court.  Bellomont  wrote  to  the  lords  of  trade 
in  1700:  "There  is  a  great  want  of  a  Court  of  Chancery  here, 
but  no  body  here  understanding  it  rightly  I  delay  appointing 
one  till  the  Judges  and  Attorney  Generals  come  from  England."^ 
Several  months  later,  in  January,  1701,  he  again  recorded  his 
delay  in  erecting  the  court  in  a  communication  to  the  lords  of 
trade,  saying:  "I  am  extremely  importun'd  to  erect  a  court  of 
chancery,  many  people  being  like  to  be  ruin'd  for  want  of  one. 
I  shall  therefore  very  soon  settle  that  court  tho'  I  should  make 
no  decrees  till  the  arrival  of  the  judge  and  attorney  general."^ 
It  was  left  for  Bellomont's  successor,  Lieutenant  Governor 
Nanfan,  finally  to  erect  this  court.  In  June,  1701,  he  ordered  the 
court  of  chancery  to  be  held,  commencing  the  first  Thursday  in 
the  following  August,  the  sessions  to  be  monthly  thereafter.   The 


23.  Butler's  "Outline  of  the  Constitutional  History  of  New  York." 

24.  "Documents   Relative   to   the   Colonial    History   of  the    State   of 
New  York,"  by  E.  B.  O'Callaghan,  M.  D.,  LL.D.,  vol.  IV,  p.  721. 

25.  Ibid.,  vol.  IV,  p.  834. 

295 


LEGAL  AND  JUDICIAL 

court  consisted  of  the  governor,  two  or  more  members  of  the 
council,  and  a  register,  clerks,  and  masters,  who  were  appointed. 

It  was  the  undeviating  policy  of  the  crown  to  refuse  to  give 
up  its  prerogative  claim  to  equitable  jurisdiction,  or  to  submit  it 
to  such  limitations  as  a  provincial  legislature  might  see  fit  to 
impose.  On  the  other  hand,  the  general  ground  of  opposition  to 
the  court  was  that,  being  founded  on  mere  prerogative,  personal 
liberties  and  property  were  subject,  not  to  law,  but  to  the  con- 
science or  disposition  of  the  royal  representative ;  they  were  made 
precarious  by  the  extortionate  fees  of  officers  who  were  not  under 
control  of  the  provincial  assembly,  by  the  excessive  bail  exacted 
in  cases  of  tie  exeat  writs,  and  by  various  delays  of  justice 
through  "the  manifold  contrivances  of  lawyers,  by  their  volum- 
inous bills  of  complaints,  answers,  and  dilatory  pleas,"  which  were 
countenanced  by  the  court  officers.  One  specific  and  pronounced 
cause  of  opposition  to  the  court  grew  out  of  the  question  of  land 
rents.  Upon  the  sale  of  land  by  the  crown,  quit  rents  were 
reserved  and  were  allowed  to  accumulate  in  arrears.  The  court 
of  chancery  was  a  medium  for  collecting  these  rents.  Small  land 
holders  thus  had  personal  reason  for  hostility  to  the  court,  and 
many  great  land  holders  feared  lest  the  court  should  invalidate 
their  titles  to  land  which  they  had  received  in  grants  from  cor- 
rupt  governors. 

Opposition  to  the  court  was  so  pronounced  that  when  Corn- 
bury  arrived  he  suspended  its  sessions  and  directed  an  investiga- 
tion into  the  complaints  regarding  it.  But  in  1704  he  re-estab- 
lished it  by  ordinance,  and  it  continued  from  that  time  until  the 
breaking  out  of  the  war  for  independence.  Cornbury  made  some 
changes  in  the  conduct  of  the  court  especially  in  lowering  the  fees, 
but  the  hostility  to  it  became  more  and  more  radical,  and  in  1708, 
just  after  Lovelace  had  come  out  as  governor,  the  assembly  passed 

296 


HISTORY  OF  NEW  YORK 

a  resolution  declaring  that  the  establishment  of  such  a  court  by  the 
government  was  illegal,  unprecedented,  and  dangerous  to  liberty. 
During  the  time  of  Lovelace  and  Ingoldesby  the  court  fell  into 
disuse.  In  1710  Hunter  revived  it,  assuming  the  office  of  chan- 
cellor and  appointing  two  masters,  two  clerks,  an  examiner  and 
a  register.  As  a  result  of  this  action  by  Hunter,  hostility  to  the 
court  again  became  outspoken.  In  November,  171 1,  the  assembly 
resolved  that  "the  erecting  a  court  of  equity,  without  consent  in 
general  assembly,  is  contrary  to  law,  without  precedent  and  of 
dangerous  consequence  to  the  liberty  and  property  of  the  sub- 
jects." The  lords  of  trade  answered  this  declaration  by  asserting 
the  right  of  the  crown  and  for  sixteen  years  thereafter,  the  court 
was  continued  without  serious  opposition. 

In  1727  the  assembly  again  took  decided  stand  in  protesting 
against  the  court.  In  this  instance  the  influence  of  Frederick 
Phillipse  was  instrumental  in  moving  the  assembly  to  action. 
Phillipse  had  been  defeated  in  a  case  in  the  court  of  chancery 
wherein  Governor  Burnet  sat  as  chancellor.  He  was  speaker  of 
the  assembly,  and  feeling  himself  aggrieved  induced  the  assem- 
bly's committee  on  grievances  to  report  certain  resolutions  which 
he  had  caused  to  be  carried  by  the  house.  The  report  in  the  min- 
utes of  the  assembly  is  as  follows : 

"Die  Sabbath :    25th  November,  1727. 

"Coll.  Hicks  from  the  Committee  of  Grievances  reported  that,  as  well 
as  by  the  Complaints  of  several  people  as  by  the  General  Cry  of  his  Majes- 
ty's subjects  Inhabiting  this  Colony,  they  find  that  the  Court  of  Chancery 
as  Lately  assumed  to  be  Sett  up  Here  renders  the  Libertys  and  properties 
of  the  said  Subjects  extremely  Precarious,  and  that  by  the  violent  measures 
taken  in  &  allowed  by  it  some  have  been  ruined,  others  obliged  to  abandon 
the  Colony,  and  many  restrained  in  it  either  by  Imprisonment  or  by  Ex- 
cessive bail  exacted  from  them  not  to  depart  even  when  no  manner  of 
suits  depending  ag't  them  and  therefore  are  of  opinion  that  the  Extraor- 
dinary proceedings  of  the  Court  and  Exorbitant  fees  and  charges  Counte- 

297 


LEGAL  AND  JUDICIAL 

nanced  to  be  Exacted  by  the  Officers  and  Commissioners  thereof  are 
the  greatest  grievance  and  oppression  this  colony  has  ever  felt  and  that 
for  removing  the  fatal  consequences  thereof  they  had  come  to  several 
resolutions  which  being  read  were  approved  by  the  House  and  are  as 
follows : 

"Resolved,  That  the  Erecting  or  Exercising  in  this  Colony  a  Court  of 
Equity  or  Chancery  (however  it  may  be  Termed)  without  Consent  in 
General  Assembly  is  unwarrantable  and  Contrary  to  the  laws  of  Eng- 
land and  a  Manifest  oppression  and  grievance  to  the  subjects  and  pernic- 
ious Consequence  to  their  Libertys  and  propertys. 

"Resolved,  That  this  House  will  at  their  next  meeting  prepare  and 
pass  An  Act  to  declare  and  adudge  all  orders  ordinances  and  Devisees  and 
proceedings  of  the  court  so  assumed  to  be  Erected  and  Exercised  as 
above  mentioned  to  be  Illegal  Null  and  void  by  Law  and  of  right  they 
ought  to  be. 

"Resolved,  That  this  House  will  at  the  same  time  take  into  considera- 
tion whether  it  be  necessary  to  Establish  a  Court  of  Equity  or  Chancery 
in  this  Colony  in  whom  the  Jurisdiction  thereof  ought  to  be  vested  and 
how  far  the  powers  of  it  shall  be  prescribed  and  Limited  examined  and 
Compared  with  the  Journal  of  the  General  Assembly." 

The  governor  and  council  made  answer  to  the  usual  effect 
that  the  resolutions  were  "unwarrantable  and  highly  injurious  to 
his  majesty's  prerogative."  Certain  reforms  were  instituted  in 
the  administration  of  the  court,  and  there  the  matter  ended  for 
the  time.  But  the  court  had  been  brought  into  greater  disrepute 
in  the  colony,  and  subsequent  governors  became  more  reluctant  to 
sit  as  chancellors.  The  historian  Smith  wrote  that  as  a  result  of 
this  action  of  the  assembly  "the  wheels  of  the  Chancery  have 
ever  since  rested  upon  their  axis — the  practice  being  condemned 
by  all  gentlemen  of  eminence  in  the  profession." 

Attacks  continued  to  be  made  upon  the  governor's  exercise 
of  equitable  jurisdiction,  and  in  1735  the  assembly,  taking  into 
consideration  the  action  of  Governor  Cosby  in  a  land  case  where 
a  plea  had  been  interposed  to  his  jurisdiction,  adopted  a  resolu- 
tion "That  a  Court  of  Chancery,  in  this  province  in  the  hands,  or 
under  the  exercise,  of  the  governor,  without  consent  of  general 

298 


HISTORY  OF  NEW  YORK 

assembly  is  contrary  to  law,  unwarrantable,  and  of  dangerous 
consequence  to  the  liberties  &  properties  of  the  people."  When 
in  1737  the  assembly  passed  a  bill  "for  establishing  &  Regulating 
Courts  to  Determine  Causes  for  Forty  shillings  &  under",  it 
again  called  the  attention  of  the  governor  to  the  general  desire  of 
having  all  courts  of  general  jurisdiction  established,  and  their 
several  jurisdictions  and  powers  appointed  and  limited,  by  the 
legislature,  and  not  left  any  longer  to  the  uncertain  exercise  of 
prerogative  power.  This  representation  of  the  assembly  had  little 
effect,  and  from  this  time  to  the  revolution  the  chancery  was  not 
often  attacked  in  the  legislative  body,  but  the  business  transacted 
in  it  gradually  became  small  and  unimportant. 

In  December,  1685,  Governor  Dongan  established  a  court 
of  exchequer  to  determine  all  royal  revenue  cases.  It  was  com- 
posed of  the  governor  and  council,  and  met  in  the  city  of  New 
York  on  the  first  Monday  of  each  month.  Dongan  held  that  this 
court  was  necessary  for  the  reason  that  in  the  other  tribunals 
there  was  a  "great  hazard  of  venturing  the  matter  on  country 
jurors;  who,  over  and  above  that  they  are  generally  ignorant 
enough,  and  for  the  most  part  linked  by  affinity,  are  too  much 
swayed  by  their  particular  humors  and  interests."  The  court 
heard  all  matters  at  issue  between  the  crown  and  the  colonists 
relative  to  lands,  rents  and  revenue.  Its  unpopularity  was  assured 
from  the  beginning,  for  the  people  were  not  content  to  have  the 
causes  in  dispute  between  themselves  and  the  government  left  to 
the  arbitrary  decision  of  the  representative  of  the  government. 
One  of  the  charges  brought  against  Leisler  in  1690  rested  upon 
this  point: 

"That  by  his  instruments  he  hath  and  doth  exact  (by  pretense  of  Pre- 

299 


LEGAL  AND  JUDICIAL 

rogative  and  for  the  use  of  the  crown)  Customs  Impositions  and  Excise 
never  granted  to  the  crown;  which  that  he  might  the  better  accomplish, 
he  hath  taken  upon  him  to  erect  a  Court  of  Exchequer,  consisting  as 
members  of  the  said  court,  viz:  Samuel  Edsall,  Benjamin  Blagg,  Johanes 
Provest,  Hcndrick  Jansen,  John  Cowenhoven,  who  begin  their  session  on 
the  20th  January,  the  i8th  of  the  same  month  several  of  the  Inhabitants 
received  summons  to  appear  at  this  unusual  court  on  the  day  above 
said,  to  give  their  reasons  why  they  would  not  pay  the  monies  they  were 
indebted  to  the  King  for  Custom."" 


In  the  royal  instructions  to  the  governors  who  immediately 
succeeded  Dongan  were  directions  to  erect  a  court  of  exchequer, 
but  none  appears  to  have  been  established.  By  the  assembly  act 
of  1691  the  supreme  court  had  cognizance  of  all  matters  in  ex- 
chequer as  in  the  court  of  exchequer  in  England.  The  first  ex- 
chequer-chamber business  attempted  in  the  supreme  court  was 
made  by  Chief  Justice  Attwood,  shortly  after  his  arrival  in  1701. 
Attwood  and  Attorney  General  Sampson  Shelton  Broughton  had 
been  sent  out  from  England  to  assist  Governor  Bellomont  to 
suppress  the  piracy  which  was  largely  engaged  in  by  the  mer- 
chants and  traders  of  New  York.  Attwood  had  a  commission  as 
judge  of  admiralty  for  New  England,  New  York  and  New  Jer- 
sey, in  addition  to  the  chief  justiceship  of  New  York.  Soon  after 
his  arrival  he  took  up  the  case  of  a  vessel  which,  seized  for  lack 
of  registry  under  the  navigation  acts,  had  been  discharged  by  the 
admiralty  judge.  Although  it  was  desired  to  prohibit,  by  writ, 
the  execution  of  the  decree  discharging  the  vessel  until  the  ad- 


26.  This  charge  appears  in  a  pamphlet  printed  in  New  York  and  re- 
printed in  London  in  1690,  entitled  "A  Modest  and  Important  Narrative  of 
Several  Grievances  and  Great  Oppressions  That  the  Peaceable  and  most 
Considerable  Inhabitants  of  Their  Majesties  Province  of  New  York  in 
America  Lye  under,  By  the  Extravagant  and  Arbitrary  Proceedings  of 
Jacob  Leisler  and  his  Accomplices.  In  "Documents  Relative  to  the 
Colonial  History  of  the  State  of  New  York",  by  E.  B.  O'Callaghan,  M.  D., 
LL.D.,  vol.  VII,  p.  683. 

300 


HISTORY  OF  N EfV  YORK 

miralty  proceedings  could  be  reviewed.  No  court  in  the  province 
appeared  to  have  an  unquestioned  right  to  issue  such  a  writ.  The 
chancery  jurisdiction  of  the  governor  was  questioned;  the  su- 
preme court  was  claimed  by  the  lawyers  to  be  a  court  of  law 
only.  Attwood  concluded  that  the  supreme  court,  sitting  as  a 
court  of  exchequer,  had  the  required  power  and  thereupon,  as- 
suming to  sit  as  a  baron  of  the  exchequer,  he  directed  "a  sug- 
gestion to  be  exhibited  to  it  for  a  prohibition  to  the  court  of  ad- 
miralty upon  its  sentence  in  that  matter."  But  as  "one  of  the 
persons  designed  for  a  judge  in  the  supreme  court  had  given  the 
obnoxious  sentence  in  favor  of  the  ship,"  and  the  other  was  a 
merchant  who  might  be  concerned  in  interest,  the  governor  sus- 
pended the  granting  their  commissions  till  this  matter  should  be 
over  in  the  supreme  court,  and  empowered  Attwood  alone  to  de- 
termine the  matter.  Notwithstanding  the  owners  of  the  vessel 
"Men  of  good  estate"  as  they  were  called  appealed  directly  to  the 
king,  the  chief  justice  proceeded  to  try  the  crown's  claim  to  a  for- 
feiture. The  captain  refused  to  appear,  but  on  the  facts  found  a 
forfeiture  was  declared,  under  which  the  vessel  was  sold  at  public 
auction.^  It  does  not  appear  that  Attwood's  exercise  of  equity 
jurisdiction  in  this  instance  was  followed  as  a  precedent  by  any 
of  his  immediate  successors.  Exchequer  matters  were  heard  at 
the  regular  terms  of  the  supreme  court.  When,  however,  as  fre- 
quently happened,  the  ordinary  business  of  the  court  consumed 
the  full  term,  the  exchequer  matters  were  taken  up  at  the  con- 
clusion of  the  regular  sessions.  Soon  the  exchequer  business  ac- 
cumulated so  that  it  could  not  be  disposed  of  in  the  regular  terms, 
and  in  April,  1702,  Lieutenant  Governor  Nanfan  ordered  separate 
terms  of  the  supreme  court  for  the  determination  of  these  cases. 


27.    "Documents   Relative   to   the   Colonial    History   of   the   State   of 
New  York,"  by  E.  B.  O'Callaghan,  M.  D.,  LL.D.,  vol.  IV,  p.  923. 

301 


LEGAL  AND  JUDICIAL 

The  practice  of  holding  these  special  terms  did  not  long  con- 
tinue, and  there  was  very  little  if  any  exchequer  proceedings  until 
in  1733  Governor  Cosby,  by  his  attorney  general,  filed  a  bill  in  the 
supreme  court  as  a  court  of  exchequer  against  Rip  Van  Dam.* 
In  1734  public  feeling  in  the  colony  against  exchequer  proceedings 
was  further  intensified  by  the  celebrated  trial  of  John  Peter 
Zenger,  charged  with  seditious  libel.^  After  the  trial  and  acquit- 
tal of  Zenger,  proceedings  of  importance  were  had  on  the  ex- 
chequer side  of  the  supreme  court  during  the  colonial  period.  In 
1642,  during  the  administration  of  Lieutenant  Governor  Clarke, 
the  assembly  passed  an  act  for  the  regulating  of  the  payments 
of  quit  rents  and  the  partition  of  lands.  This  act  gave  jurisdic- 
tion to  the  supreme  court.  As  Clarke  expressed  it  in  a  letter  to 
the  lords  of  trade,  "a  Court  of  Exchequer  is  in  effect  by  this  act 
established,  whereas  the  uncertainty  arising  from  the  different 
opinions  of  the  lawyers  on  the  legality  of  such  a  Court  without  an 
act  to  countenance  it,  was  one  principal  Cause  of  the  unhappy 
animosities  that  a  few  years  ago  miserably  divided  the  people, 
and  had  almost  ruined  the  place."^  The  subject  of  the  re-estab- 
lishment of  such  a  court  continued  to  be  agitated  by  the  suc- 
cessive royal  governors.  As  late  as  1766,  Governor  Moore,  writ- 
ing to  the  Earl  of  Dartmouth,  one  of  the  lords  of  trade,  declared 
his  opinion  that  such  a  court  was  necessary  and  added,  "It  is  a 
Court  much  dreaded  by  the  Inhabitants  here,  and  one  which  they 
do  not  wish  to  see  established  among  them,  as  it  must  necessarily 
bring  to  light  many  dark  transactions  which  have  been  committed 
against  the  crown,  but  as  there  are  no  salaries  appointed  for  the 
Executive  Officers,  it  will  be  impracticable  to  obtain  anything  of 


28.  For  an  account  of  this  case  sec  page  251-252,  ante. 

29.  See  page  252,  ante. 

30.  "Documents   Relative  to   the   Colonial   History  of  the    State   of 
New  York,"  by  E.  B.  O'Callaghan,  M.  D.,  LL.D.,  vol.  VI,  p.  215. 

302 


HISTORY  OF  NEW  YORK 

the  kind  from  the  Legislature  here,  for  the  reason  above  men- 
tioned."" Answering  this  communication  the  lords  of  trade, 
conceding  the  importance  of  establishing  such  a  court,  gave  their 
opinion  that  "It  is  a  consideration  of  too  great  importance  to  be 
hastily  taken  up".  And  it  appears  never  to  have  again  been  taken 
up. 


Prior  to  1678,  whenever  occasion  arose  for  admiralty  pro- 
ceedings, they  were  exercised  by  the  governor  in  virtue  of  his  pre- 
rogative. Governor  Andros,  in  the  beginning  of  his  administra- 
tion, exercised  these  powers  under  his  general  commission,  but 
this  authority  was  not  considered  quite  sufficient,  and  therefore 
on  May  20,  1678,  the  Duke  of  York  gave  to  him  a  special  com- 
mission to  act  as  vice-admiral  throughout  the  entire  colonial  gov- 
ernment. This  commission  also  authorized  him  to  appoint  a 
judge,  register  and  marshal  in  admiralty  who  should  hold  their 
offices  during  the  pleasure  of  the  governor. 

"Whereas  it  may  be  convenient  for  you  to  be  authorized  and  empow- 
ered to  appoint  a  Judge,  Register  and  Marshall  of  the  Admirality  within 
your  governont  by  reason  of  its  distance  from  hence,  (notwithstanding 
the  clause  in  your  commission  of  Vice  Admirall  wch  reserves  the  nomina- 
tion of  them  to  myself).  These  are  therefore  to  authorize  and  empower 
you,  and  I  hereby  authorize  and  empower  you  from  time  to  time  dureing 
the  vacancyes  of  the  said  places  to  nominate  constitute  and  appoint  the 
Judge  Register  and  Marshall  of  the  Admiralty  afores<i  to  continue  dureing 
my  pleasure  only.  Given  under  my  hand  and  seale  at  St.  James's  y® 
20th  day  of  May  1678."" 

For  some  time,  however,  no  regular  tribunal  was  estab- 
lished, the  governor  contenting  himself  with  issuing  special  ses- 
sions for  the  trial  of  admiralty  cases  as  they  came  up,  while 


31.  "Documents  Relative   to  the   Colonial    History   of  the    State   of 
New  York,"  by  E.  B.  O'Callaghan,  M.  D.,  LL.D.,  vol.  VII,  p.  827. 

32.  Ibid.,  vol.  Ill,  p.  268. 


LEGAL  AND  JUDICIAL 

other  cases  which  would  naturally  come  before  a  court  of  this 
character  were  left  for  hearing  and  determination  to  the  mayor's 
court  of  New  Amsterdam.  On  October  5,  1678,  Andros  com- 
missioned Mayor  Stephen  Van  Cortlandt  to  be  judge  of  the 
court,  and  the  aldermen  of  the  city  to  be  his  assistants ;  the  city 
clerk,  William  Leet,  was  commissioned  to  be  register,  and  the 
sheriff,  Thomas  Ashton,  was  to  be  marshal.  For  several  years 
thereafter  this  organization  of  the  court  continued,  the  mayor  of 
the  city  ex  officio,  receiving  a  commission  as  judge.  In  this 
capacity  Thomas  Delavall  succeeded  Stephen  Van  Cortlandt 
in  1679.  Subsequently,  in  1683,  Lucas  Santen,  who  was  then  col- 
lector of  the  port,  was  appointed  judge,  and  he  was  succeeded  in 
1684  by  John  Palmer. 

In  the  commissions  of  all  the  early  governors,  Dongan, 
Sloughter  and  Fletcher,  there  was  authority  similar  to  that  in  the 
commission  of  Andros  to  erect  a  court  of  admiralty.  On  Novem- 
ber 19,  1694,  Governor  Fletcher,  referring  to  this  fact,  asked  the 
lords  of  admiralty  of  England  for  power  to  appoint  a  judge, 
register  and  marshal  for  the  province,  but  no  appointments  were 
made  for  several  years  thereafter.  In  September,  1702,  Corn- 
bury,  writing  to  the  lords  of  trade,  said : 

"I  have  made  the  best  inquiry  I  can,  and  find  that  the  first  time  there 
was  a  regular  Court  of  Admiralty  here  it  was  established  by  Coll.  Fletch- 
er by  virtue  of  a  warrant  from  the  Lords  of  the  Admiralty  impowering  him 
to  appoint  a  Judge,  Register  and  Marshall  for  the  Court  of  Admiralty. 
After  that  in  my  Lord  Bellamont's  time  there  was  a  commission  from  the 
Lords  of  the  Admiralty  appointing  Coll  Smith  Judge  of  the  Admiralty 
here,  and  since  that  Mr  Atwood  brought  over  with  him  a  Commission 
from  the  Lords  of  the  Admiralty  constituting  him  Judge  of  that  Court."" 

William  Smith,  who  was  appointed  judge  of  the  court  in 


li.     "Documents   Relative   to   the   Colonial   History  of  the   State  of 
New  York,"  by  E.  B.  O'Callaghan,  M.  D.,  LL.D.,  vol.  IV,  p.  1000. 

304 


HISTORY  OF  NEW  YORK 

1697,  described  the  method  of  admiralty  proceeding  in  a  com- 
munication which  he  made  to  the  Earl  of  Bellomont.  He  said 
that  "in  the  Court  of  Vice  Admiralty  here  we  have  in  all  things 
as  near  as  possible  followed  the  proceedings  of  the  Admiralty 
Court  in  England  save  only  where  greater  power  is  given  here  in 
the  plantations  by  act  of  parliament  to  the  Admiralty,  than 
allowed  of  or  practicable  in  England  which  hath  been  duly 
observed  in  my  administration  in  that  Court  in  this  province."'* 
In  1763,  the  fourth  year  of  the  reign  of  King  Charles  II., 
an  act  of  parliament  was  passed  relative  to  trade  in  the  American 
colonies  and  plantations.  The  forty-first  section  of  this  act  di- 
rected : 

"That  all  the  forfeitures  and  penalties  inflicted  by  this  or  any  other  act 
or  acts  of  Parliament  relating  to  the  trade  and  revenues  of  the  said  Brit- 
ish Colonies  or  Plantations  in  America  which  shall  be  incurred  there,  shall 
and  may  be  prosecuted,  sued  for  and  received  in  any  Court  of  Record  or 
in  any  Court  of  Admiralty  in  the  said  Colonies  and  Plantations  where 
such  offense  shall  be  committed,  or  in  any  Court  of  Vice-Admiralty  which 
may  or  shall  be  appointed  over  all  America  (which  Court  of  Admiralty  or 
Vice-Admiralty  is  hereby  respectively  authorized  and  required  to  proceed, 
hear  and  determine  the  same)  at  the  election  of  the  informer  or  prosecu- 
tor." 

This  action  of  the  British  parliament  created  great  dissatis- 
faction among  the  colonists.  The  opposition  to  the  king's  pre- 
rogative in  establishing  and  directing  the  administration  of  the 
courts  had  developed  to  an  acute  point  during  the  preceding  half 
century,  and  was  no  more  tolerable  to  the  citizens  of  the  later 
period  than  it  had  been  to  their  ancestors,  when  the  courts  were 
first  established  in  the  early  years  of  the  century.  On  October 
18,    1764,   the   general   assembly,   giving  voice   to   the  popular 


34.    "Documents   Relative   to   the    Colonial   History   of   the    State   of 
New  York,"  by  E.  B.  O'Callaghan,  M.  D..  LL.D.,  vol.  IV,  p.  828. 


20 


LEGAL  AND  JUDICIAL 

<   opinion,  petitioned  the  king  in  regard  to  this  matter,  and  also  at 
\  the  same  times  communicated  to  the  house  of  lords  and  the  house 
of  commons  its  opinions  in  regard  to  the  matter.    The  petition  to 
'.  the  king  said  that : 

"The  unavoidable  delegations  of  the  royal  authority  which  necessarily 

^    expose  us  to  the  designs  of  wicked  men  leave  us  neither  rest  nor  security, 

while  a  custom  house  officer  may  wantonly  seize  what  a  judge  of  your 

Majesty's  Court  of  Vice-Admiralty  may  condemn  in  his  discretion,  or  at 

'    best  restore  to  the  honest  proprietor  without  a  possibility  of  a  restitution 

for  the  injury." 

.  The  communication  to  the  house  of  lords  said  among  other 
things : 

"That  the  amazing  powers  vested  by  some  of  the  late  acts  of  trade 
in  the  Judges  of  the  Vice-Admiralty  Courts,  who  do  not  proceed  according 
to  the  course  of  the  common  law,  nor  admit  of  trials  by  juries,  one  of  the 
'  most  essential  privileges  of  Englishmen,  has  so  unfavorable  an  aspect  on 
the  property  of  the  subject,  that  we  could  not  consistent  with  out  duty 
suppress  our  apprehensions." 

The  petition  to  the  commons  said : 

"We  cannot  stifle  our  regrets  that  the  laws  of  trade  in  general  change 
the  current  of  justice  from  the  common  law,  and  subject  controversies  of 
'    the  utmost  importance  to  the  decisions  of  the  Vice- Admiralty  Courts  who 
proceed  not  according  to  the  old  wholesome  laws  of  the  land,  nor  are  al- 
ways filled  with  judges  of  approved  knowledge  and  integrity." 

Admiralty  jurisdiction  in  the  colony  extended  to  decisions 
in  all  maritime  causes.     Proceedings  in  the  court  were  the  same 
as  in  the  high  court  of  admiralty  in  England.    The  court  partic- 
ularly tried  cases  and  rendered  decisions  as  to  whether  captures 
.•  atid  hostilities  between   Great  Britain  and  other  powers  were 
;  legal  prizes. 

The  officers  of  this  court  from  the  time  of  its  beginning  in 

306 


HISTORY  OF  NEW  YORK 

1684  to  the  breaking  out  of  the  revolution  were :  Advocate- 
Generals :  John  Tuder,  1684;  Jacob  Milborne,  1690;  the  At- 
torney-Generals, ex  officio  after  1700. 

Registers :  Samuel  Leete,  1675  ;  William  Nicoll,  1683  ;  John 
Spragge,  1684;  George  Brewerton,  1690;  John  Tuder,  1691 ; 
William  Sharpas,  1696;  John  Tuder,  1697;  Robert  Robinson, 
1709;   Richard  Nicoll,  1773;  John  McKesson,  1776. 

Judges :  Stephen  Van  Cortlandt,  1678 ;  Thomas  Delavall, 
1679;  Lucas  Santen,  1683;  John  Palmer,  1684;  Matthias  Nicolls, 
1686;  Peter  De  La  Noy,  1690;  Joseph  Dudley,  1691 ;  Thomas 
Johnson,  1691 ;  William  Smith,  1693;  William  Pinhorne,  1696; 
William  Smith,  1697;  William  Attwood,  1701 ;  John  Bridges, 
1702;  Roger  Mompesson,  1703;  Caleb  Heathcote,  1715;  Francis 
Harrison,  1721 ;  Daniel  Horsmanden,  1736;  Lewis  Morris,  1760; 
Richard  Morris,  1762;  Lewis  Morris,  1776;  Lewis  Graham,  1776. 


In  the  early  Dutch  period,  the  exercise  of  judicial  power  in 
relation  to  the  succession  of  estates,  real  or  personal,  and  the 
settlements  of  the  affairs  of  those  who  had  died  intestate,  was  ac- 
cording to  the  Dutch  Roman  law,  the  customs  of  Amsterdam, 
and  the  ordinances  of  New  Amsterdam.  Authority  in  this  re- 
spect was  vested  in  the  director  general  and  his  council,  or  the 
vice-director  and  the  schout-fiscal.  Subsequently,  cases  of  this 
kind  came  before  the  court  of  which  the  vice-director  was  a  judge 
and  the  councilors  were  members,  and  where  occasionally  the 
director  general  presided.  Particular  attention  was  given  to 
guarding  the  interests  of  widows  and  orphans.  The  deacons  of 
the  Reformed  Church  acted  as  orphan  masters,  and  it  was  part 
of  their  duty  to  notify  the  director  of  the  decease  of  any  member 
of  the  commonalty,  in  order  that  the  estate  could  be  looked  after 

307 


LEGAL  AND  JUDICIAL 

and  the  interests  of  the  heirs  protected.  When  the  city  of  New 
Amsterdam  was  incorporated,  the  duties  which  before  that  time 
had  been  discharged  by  the  deacons  of  the  church  and  the  director 
general  and  his  council,  were  transferred  to  the  board  of  burgo- 
masters and  schepens.  All  powers  of  probating  wills,  granting 
letters  of  administration,  appointing  curators  to  take  charge  of 
estates  of  widows  and  children,  appointing  executors  and  ad- 
ministrators, and  reviewing  the  accounts  of  executors  were  exer- 
cised by  this  court ;  but  there  was  an  appeal  to  the  governor  and 
council. 

At  the  second  meeting  of  this  board,  February  lo,  1653,  a 
request  to  the  director  was  drawn  up  that  two  orphan  masters 
should  be  provided,  and  for  this  position  there  were  placed  in 
nomination  Paulus  Leendersten  Van  der  Grift,  William  Beeck- 
man,  OloflF  Stevensen  Van  Cortlandt,  and  Cornelis  Steenwyck, 
from  whom  the  director  might  choose  two.  A  month  later  the 
director  and  council,  taking  cognizance  of  this  action,  refused  to 
accede  to  the  request  on  the  ground  that  the  city  was  not  yet  able 
to  incur  the  necessary  expense,  and  decided  "that  the  deacons 
shall  keep  their  eyes  open  and  look  as  orphan  masters  after 
widows  and  orphans."  Again,  on  October  18,  1655,  the  burgo- 
masters and  schepens  renewed  their  appeal  and  petitioned  the 
director  general  and  council  as  follows: 

"That  by  daily  experience  through  requests  to  us  we  find,  that  there 
are  now  in  this  City  widows  and  orphans  who  we  think  should  be  taken 
care  of,  that  their  means  and  property  be  well  administrated  and  made 
use  of.  In  obedience  to  our  instructions  we  therefore  request  your  Hon- 
ours, that  following  the  customs  of  our  Fatherland  you  will  appoint  some 
persons  to  the  office  of  Orphan  Masters,  for  which  we  propose  a  double 
number,  from  whom  your  Honours  will  please  to  select  and  appoint  a 
single  one."" 


35.    "Records  of  New  Amsterdam",  vol.  I,  p.  380. 

308 


HISTORY  OF  NEW  YORK 

With  this  petition  four  names  were  submitted :  Pieter  Wol- 
fertsen  Van  Couwenhoven,  Hendrick  Hendricksen  Kip,  Pieter 
Cornehssen  Van  der  Veen  and  Jacob  Steendam.  A  month  later, 
November  19,  1655,  the  director  general  "selected  and  confirmed 
as  overseers  of  orphans"  Pieter  Wolfertsen  Van  Couwenhoven 
and  Pieter  Cornelissen  Van  der  Veen. 

The  burgomasters  and  schepens  still  sat  as  judges  of  the 
orphans  court  until  early  in  1656,  when  they  presented  another 
remonstrance  to  Stuyvesant : 

"That  the  labours  and  cares  daily  occurring  in  their  offices  are  in- 
creasing so  much,  that  it  is  inconvenient,  to  attend  as  well  to  the  duties 
of  orphanmasters  as  they  would  like  to  do;  they  therefore  request,  that 
two  worthy  and  respectable  men  be  authorized  and  appointed,  whose  duty 
It  shall  be,  to  look  after  the  orphans  and  infant  children,  living  in  the  juris- 
diction of  this  City,  to  administer  upon  their  property  in  and  without  the 
city  and  oversee  such  administration  by  others."" 

In  answer  to  this,  Stuyvesant  appointed  as  orphan  masters 
Paulus  Leendersten  Van  der  Grift  and  Pieter  Wolfertsen  Van 
Couwenhoven,  Oloflf  Stevensen  Van  Cortlandt,  Wilhelmus  Beeck- 
man,  Martin  Krieger,  Johannes  Pietersen  Ven  Brugge,  Allard 
Anthony,  Johannes  de  Peyster,  Cornelis  Steenwyck,  Johannes 
Van  Brugh,  Covert  Loockermans  and  Jacob  Strycker.  Pieter 
Wolfertsen  Van  Couwenhoven  served  seven  terms  during  this 
period  of  twelve  years,  his  last  appointment  being  in  1662.  At 
Fort  Orange,  where  there  was  a  separate  court,  the  duties  of  the 
orphan  master  were  discharged  in  1652  by  the  vice  director  ex 
officio,  and  in  February,  1652,  Jan  Verbeeck  and  Evert  Wendel 
were  appointed  to  the  office. 

Some  of  the  probate  proceedings  at  this  time  will  serve  to 
illustrate  how  tenaciously  the  Dutch  clung  to  the  old  forms  of 


36.    "The  Minutes  of  the  Orphanmasters  of  New  Amsterdam",  p.  14. 

309 


LEGAL  AND  JUDICIAL 

ceremonies  to  which  they  were  accustomed  in  the  fatherland. 
Where  a  widow,  to  reheve  herself  from  certain  obligations,  de- 
sired to  renounce  her  husband's  estate,  it  was  in  all  cases  re- 
corded that  the  intestate's  estate  "has  been  kicked  away  by  his 
wife  with  the  foot,"  and  that  she  has  duly  "laid  the  key  on  the 
coffin."  On  September  lo,  1664,  William  Doecklef,  appeared 
before  the  court  and  declared  his  intention  to  marry  Annetje 
Ryzens,  widow  of  Solomon  La  Chair.  At  the  same  time  he  repre- 
sented that  the  estate  left  by  the  above  mentioned  Solomon  La 
Chair  was  indebted  more  than  was  due  it,  and  therefore  he  an- 
nounced that  his  intention  was  to  abandon  it,  while  the  prospec- 
tive bride  stated  that  "she  too  pushed  it  with  her  foot." 

It  was  the  custom  to  grant  a  commission  to  trustees  to  settle 
an  estate,  the  debts  of  which  exceeded  the  assets.  Then  the  right 
to  succession  or  inheritance  might  be  relinquished  and  the  heir  or 
widow  relieved  of  any  claim  by  creditors.  A  commission  in  a 
case  of  this  kind  read : 

"Herman  Jacobsen  Bamboes  has  been  lately  shot  dead  murderously 
by  the  Indians  and  whereas  the  Estate  left  by  him  has  been  kicked  away 
by  his  wife  with  the  foot,  who  has  laid  the  key  on  the  coffin ;  therefore  it 
is  necessary  to  authorize  and  quahfy  some  persons  to  regulate  the  same 
in  order  that  the  interested,  or  the  creditors  may  obtain  their  own."" 

When,  under  the  English,  the  mayor's  court  succeeded  to  the 
court  of  burgomasters  and  schepens,  the  orphan  masters  went  out 
of  office,  and  the  new  court  exercised  the  jurisdiction  which 
formerly  belonged  to  them;  and  in  respect  to  testamentary  mat- 
ters and  intestate  estates  the  court  of  common  pleas  also  exer- 
cised this  jurisdiction.  Outside  of  New  York,  the  courts  of  ses- 
sions had  this  authority  in  the  first  instance. 

Under  the  Duke's  Laws,  established  by  Governor  Nicolls, 


y;.    "Records  of  New  Amsterdam",  vol.  VII,  p.  188. 

310 


HISTORY  OF  NEW  YORK 

it  was  provided  that  in  every  town  the  constable  and  two  over- 
seers should  take  inventory  and  appraise  the  property  of  the  - 
deceased  individual,  and  make  returns  thereof  under  oath  to  the 
court  of  sessions.  The  probating  of  wills,  the  granting  of  let- 
ters of  administration,  the  final  accountings,  the  removal  of  exec- 
utors, the  appointing  of  guardians  to  children,  and  other  mat- 
ters pertaining  to  the  settlement  of  estates,  came  before  the 
courts  of  sessions  in  the  several  ridings  and  the  mayor's  courts 
in  New  York  and  Albany. 

When  an  estate  was  valued  at  over  one  hundred  pounds,  it 
was  required  that  a  certificate  should  be  forwarded  to  the  secre- 
tary of  the  province  in  New  York,  where  it  would  be  recorded, 
and  where  letters  testamentary  and  of  administration  and  the 
final  discharge  of  executors  or  administrators  (which  was  called  - 
a  quietus)  were  granted  by  the  governor  under  the  seal  of  the 
province.  Proof  of  proceedings  in  first  instance,  before  the 
courts  of  sessions  or  the  mayor's  courts  were  transmitted  to  the 
governor,  and  the  act  of  the  governor  was  only  a  formal  rati- 
fication of  the  action  of  the  lower  courts.  In  some  instances  the 
governor  gave  his  judgment  upon  the  construction  of  a  will,  and  ' 
Governor  Andros  granted  letters  without  any  proceedings  in 
court,  but  these  were  exceptional  instances,  and  of  rare  occur- 
rence. In  all  proceedings  before  them,  the  courts  of  sessions  had 
the  power  of  granting  a  rehearing,  or,  as  it  was  called,  a  "re- 
view", and,  upon  such  review,  might  in  their  discretion  admit  new 
evidence  a  power,  however,  which  was  not  continued  in  the  courts  . 
which  succeeded  in  1691  to  the  civil  jurisdiction  of  these  tri- 
bunals. 

This  practice  continued  until   1686.     After  that,  according  • 
to  instructions  issued  first  to  Governor  Dongan  and  then  to  Gov- 
•ernor  Sloughter,  there  was  a  change  in  method.     The  courts  of  ; 

311 


LEGAL  AND  JUDICIAL 

sessions  and  the  mayor's  courts  exercised  the  same  functions  as 
before,  but  the  governor  and  the  secretary  of  the  province  also 
took  proof  of  the  execution  of  wills  and  directed  the  inventory 
and  appraisement  of  estates.  The  scope  and  the  authority  for 
this  procedure  was  clearly  indicated  in  169 1,  under  Lieutenant 
Governor  Ingoldesby,  when  a  clause  in  all  letters  granted  declared 
that  the  hearing  of  accounts,  the  granting  of  probates,  the  dis- 
charge of  executors  and  all  cognate  matters  belonged  to  the  gov- 
ernor, and  not  to  the  inferior  judges. 

Wills  were  proved  by  the  secretary,  and  he  annexed  a  cer- 
tificate that  "being  thereunto  delegated"  the  will  had  been  duly 
proved  before  him.  Then  an  authentication,  in  the  name  of  the 
governor,  in  the  form  that  continued  in  use  down  to  the  time 
of  the  "Revised  Statutes,  that  the  will  had  been  proved,  approved 
and  allowed,"  under  the  prerogative  seal,  was  annexed,  and  the 
whole  was  recorded  in  the  secretary's  office — the  validity  of  the 
record  being  attested  by  his  signature.  Gradually  this  department 
in  the  secretary's  office  assumed  great  importance,  and  ultimately 
it  became  known  as  the  prerogative  office,  while  its  records  were 
named  the  registry  of  prerogatives.  In  1691  the  entire  institu- 
tion was  denominated  the  prerogative  court. 

An  act  of  the  assembly  in  1692  provided  that  all  wills  and 
letters  of  administration  should  be  granted  by  the  governor  or 
by  some  person  or  persons  in  the  prerogative  office,  to  whom  the 
governor  had  delegated  this  duty,  and  that  in  each  town  two  free- 
holders should  be  "elected  and  appointed"  to  have  charge  of  the 
estates  of  persons  who  died  intestate.  It  was  further  ordered 
that  all  w;ills  relating  to  estates  in  New  York,  Orange,  Rich- 
mond, Westchester  and  Kings  counties,  should  be  proved  in  New 
York,  In  counties  further  removed  from  New  York,  the  courts 
of  common  pleas  were  authorized  to  take  the  necessary  proof 

312 


HISTORY  OF  NEW  YORK 

and  to  send  the  papers  to  the  probate  office  in  New  York  for 
record.  In  1750  the  court  of  common  pleas  in  Orange  county 
received  a  similar  authorization,  and  later  the  authority  was 
extended  to  cover  other  northern  counties.  Where  the  estate 
was  under  £50,  the  courts  of  common  pleas  were  authorized  to 
admit  the  will  to  probate,  or  to  grant  letters  of  administration, 
and  from  their  decision  an  appeal  was  allowed  to  the  governor, 
or  to  the  person  he  might  delegate  to  act  for  him.  In  the  let- 
ter written  by  Matthew  Clarkson,  the  secretary  of  the  province, 
to  the  lords  of  trade,  in  1693,  this  jurisdiction  is  explained:  "The 
governor  discharges  the  place  of  the  ordinary  (the  bishop)  in 
granting  administration  and  in  proving  wills,  and  the  secretary  of 
the  province  acts  as  registrar." 

The  secretary  of  the  province  was  an  officer  in  a  certain 
measure  independent  of  the  governor,  being  appointed  by  the 
crown,  and  he  had  a  deputy.  Governor  Fletcher  appointed  this 
deputy,  as  his  delegate,  to  take  the  proof  of  wills,  which  in 
turn  presented  to  the  governor  were  allowed  by  him.  In  1702, 
Governor  Cornbury  appointed  as  his  delegate  Doctor  John 
Bridges,  who  not  long  after  became  chief  justice  of  the  supreme 
court.  Doctor  Bridges,  in  the  name  of  the  governor,  took  proof 
of  wills,  and  also  swore  in  the  executors  and  administrators,  took 
proof  of  inventories,  and  otherwise  exercised  surrogate  juris- 
diction. Upon  his  certificate,  the  deputy  secretary  of  the  prov- 
ince granted  letters.  Bridges  was  the  first  official  to  make  use 
of  the  surrogate  title.  After  he  became  chief  justice,  Cornbury 
appointed  the  deputy  secretary  as  his  delegate,  and  with  only 
incidental  exceptions,  this  practice  was  continued,  until  the  time 
of  the  revolution. 

The  rule  of  having  all  wills  proved  in  New  York  city,  re- 
sulted in  exceeding  inconvenience  to  citizens  of  the  colony  resid- 

313 


LEGAL  AND  JUDICIAL 

ing  at  a  distance.  Travel  was  difficult  in  those  days,  and  it  was  a 
hardship  to  those  concerned  in  the  estates  of  decedents  thus  to 
comply  with  the  law.  Accordingly,  Cornbury  at  first,  other  gov- 
ernors afterward  following  his  example,  appointed  delegates  for 
the  distant  counties  of  the  colony,  and  also  a  local  delegate  for 
the  city  and  town  of  New  York,  the  latter  being  an  appointment 
entirely  distinct  from  the  secretary  or  the  deputy  secretary.  This 
arrangement  was  intended,  in  conformity  with  the  instructions 
which  accompanied  the  commissions  of  the  governors,  to  carry 
out  the  distinct  jurisdiction  exercised  in  England  by  the  com- 
missaries of  the  bishop  diocesan  and  the  ordinary  or  delegate  of 
the  Archbishop  of  Canterbury,  which  was  then  known  as  the 
court  held  by  the  commissary  of  the  bishop,  and  the  prerogative 
court  held  by  the  delegates  of  the  archbishop  or  metropolitan,  so 
as  to  make  the  practice  in  New  York  follow  as  much  as  possible 
that  in  England. 

If  the  deceased  had  "goods,  chattels,  and  property  in  divers 
places  within  the  province",  then  the  governor  exercised  exclu- 
sive jurisdiction,  but  if  the  goods  of  the  deceased  were  com- 
prised in  one  county  only,  the  will  would  be  proved  by  the  gov- 
ernor's delegate  and  then  taken  to  the  prerogative  court,  and  the 
records  copied  in  the  registry  of  the  court.  Letters  of  admin- 
istration, and  all  matters  pertaining  thereto  were  granted  only  in 
the  prerogative  court,  and  the  same  court  had  power  to  grant 
marriage  licenses  and  licenses  to  school  masters  and  to  record 
the  installation  of  clergymen.  The  delegate  of  the  governor  in 
this  prerogative  court,  was  the  secretary  of  the  province  or  the 
deputy  secretary.  The  local  delegate  appointed  by  the  governor 
for  New  York  City,  like  the  local  delegates  appointed  for  the 
smaller  towns,  had  no  such  powers  as  the  general  delegate  or 
the  delegate  of  the  governor.     At  first  the  local  delegate  bore 

314 


HISTORY  OF  N EW  YORK 

only  the  name  of  delegate,  but  in  1746,  many  of  them  began  to 
assume  the  title  of  surrogate,  and  not  long  thereafter  all  were  so 
designated  in  the  commissions  which  were  issued  to  them. 

In  1743  an  act  was  passed  for  the  more  speedy  recovery  of 
legacies.  By  this  act  any  person  entitled  to  a  legacy  or  a  resid- 
uary estate  under  a  will,  or  to  any  share  in  the  estate  of  an 
intestate,  might  bring  an  action  against  the  executors  or  admin- 
istrators, after  it  became  due,  or,  if  no  time  was  fixed  by  the 
will,  after  a  year  had  expired,  to  compel  its  payment,  in  the 
supreme  court  or  any  court  of  record,  if  it  amounted  to  more 
than  20  pounds,  or  if  under  that  sum  in  a  court  of  common 
pleas.  If  a  pica  of  want  of  assets  was  put  in,  the  court  was 
empowered  to  appoint  auditors  to  examine  the  accounts  of  the 
executor  or  administrator,  who  were  to  report  how  the  account 
stood,  and  what  sum  would  remain  after  the  payment  of  debts, 
and  to  what  portion  the  plaintiff  was  entitled.  The  court  was 
empowered  to  correct  any  mistakes  or  errors  in  the  accounts 
reported,  and  for  the  amount  found  to  be  due  the  plaintiff  had 
execution,  which  act  continued  in  force  down  to  the  Revised 
Statutes.  This  act  and  the  general  jurisdiction  exercised  by  the 
court  of  chancery  in  such  cases,  furnished  a  more  effectual  and 
more  expeditious  remedy  than  the  prerogative  court  could  afford. 
Naturally  therefore  the  practice  of  accounting  in  that  court  grad- 
ually fell  into  disuse,  except  when  an  executor  or  administrator 
filed  his  account  with  the  view  of  obtaining  his  discharge.  In 
time  the  common  law  courts  were  but  rarely  resorted  to,  as  the 
remedy  in  equity  was  more  efficient  and  better  adapted  for  adjust- 
ing the  rights  of  all  parties.^ 


38.  A  comprehensive  and  learned  account  of  the  prerogative  juris- 
diction was  given  by  Judge  Charles  P.  Daly,  of  the  court  of  common  pleas, 
sitting  as  a  surrogate  in  the  matter  of  the  estate  of  Joseph  W.  Brick,  No- 
vember 26,  1862.     15  Abbott's  Practice,  Rep.  12. 


LEGAL  AND  JUDICIAL 

Beginning  with  1692  the  registers  and  principal  surrogates 
during  the  colonial  period  were:  the  secretary  of  the  province, 
1692;  Stephen  Van  Cortlandt,  1696;  the  council  or  any  three 
of  them,  1702;  John  Bridges,  1702;  George  Clarke  or  his 
deputy,  1703;  S.  S.  Broughton,  1704;  Thomas  Wenham,  1705; 
Isaac  Bobin,  1731 ;  Goldsborow  Banyar,  1753;  John  Godby,  1754; 
Goldsborow  Banyar,  1762;  Jolin  Feench,  1766;  Francis  Child, 
deputy,  1768;  Philip  Livingston,  1768;  Francis  Child,  deputy, 
1769;  Goldsborow  Banyar,  1769;  Edmund  Faning,  1771,  and 
Samuel  Banyar,  Jr.,  1774.^^ 

It  has  been  stated^  that  for  more  than  one  hundred  years 
before  the  adoption  of  the  first  constitution  of  New  York,  and 
for  many  years  thereafter,  judicial  dissolution  of  marriage  was 
unknown.  It  was  not  until  1787,  that  the  legislature  authorized 
the  court  of  chancery,  which  had  then  been  newly  elected,  to  pro- 
nounce divorces  a  vinculo,  but  then  only  in  cases  of  adultery. 
Previous  to  that  time,  the  only  means  of  affecting  a  divorce  was 
by  a  special  act  of  the  legislature.*^ 

Nevertheless  there  is  abundant  evidence  that  during  the 
Dutch  period,  and  the  first  period  of  the  English  colonial  time, 
preceding  the  revolution  of  1688,  divorce  by  a  decree  of  the 
governor  or  by  other  authorities  was  not  unknown.  The  Dutch 
law  allowed  divorce  for  adultery,  and  such  divorces  were  granted 
by  the  courts  of  burgomasters  and  schepens.  Several  cases  may 
be  cited  in  point.  Daniel  Denton,  whose  history  of  the  colony 
was  one  of  the  first  and  best  works  of  its  kind,  went   from 


39.  Messrs.    Broughton,   Wenham,   Bobin,   Banyar   and   Godby  were 
deputies  to  George  Clarke. 

40.  "History  of  the  Bench  and  Bar  of  New  York,"  p.  78. 

41.  Kent's  Commentaries,  vol.  II,  p.  97. 

316 


HISTORY  OF  NEW  YORK 

Jamaica  to  London,  to  secure  the  publication  of  his  book.  Upon 
returning  to  his  home,  in  this  country,  he  found  that  his  wife, 
Abigail  Denton,  had  been  unfaithful  to  him,  and  he  applied  to  the 
court  of  sessions  for  divorce.  That  court  decided  that  it  had  no 
jurisdiction,  and  the  case  was  brought  before  the  governor  and 
council.  The  governor — Lovelace — and  council  decided  that  it 
was  conformable  to  the  laws  of  the  colony  and  consistent  with 
the  civil  laws,  and  in  consonence  with  the  laws  of  the  English 
that  the  marriage  could  be  dissolved  upon  proof  of  adultery,  and 
he  sent  the  case  back  to  the  lower  court  to  take  proof.  The  gov- 
ernor could  scarcely  take  this  action,  if  he  cared  to  act  legally, 
except  upon  the  theory  that  the  Dutch-Roman  law  allowing 
judicial  divorce  had  survived  the  taking  of  the  colony  by  the 
English,  and,  as  he  said,  was  not  repugnant  to  the  English  law, 
which  was  then  the  law  of  the  colony. 

On  March  i,  1674,  at  the  meeting  of  the  governor  general 
and  council,  this  being  during  the  short  administration  of  Colve, 
the  case  of  Ralph  Day  and  his  wife  who  was  Mary  Van  Harris 
was  brought  up.  In  their  decision,  the  governor  general  and 
council 

"Declare  the  marriage  contracted  by  the  Deft  with  Mary  Van  Har- 
ris on  the  5th  of  February  last,  to  be  unlawful,  inasmuch  as  it  was  solemn- 
ized by  Jacobus  Fabricius,  who  had  no  legal  power  so  to  act  and  without 
his  engagement  ha\nng  been  published  three  several  times  according  to  the 
laws  &  customs  of  the  government;  but  finding  the  charge  against  him  of 
having  a  second  wife  in  New  England  unfounded,  he  is  therefore  per- 
mitted to  confirm  himself  in  wedlock  with  the  above  named  Mary,  accord- 
ing to  the  laws  of  the  government."" 

On  April  12,  of  the  same  year,  at  the  council  meeting: 


42.    "Documents  Relative  to  the  Colonial  History  of  the  State  of  New 
York,"  by  E.  B.  O'Callaghan,  M.  D.,  LL.D.,  vol.  H,  p.  692. 


LEGAL  AND  JUDICIAL 

"Catrina  Lane,  requesting  by  petition,  letters  of  divorce  and  separa- 
tion from  her  husband  Daniel  Lane,  as  her  said  husband  had  been  accused 
of,  and  arrested  for  committing  and  perpetrated  incest  with  his  own 
daughter,  and  without  clearing  himself  thereof  hath  broken  jail  and  ab- 
sconded; which  being  taken  into  consideration  by  the  Governor-General 
and  Council  of  New  Netherland,  they  have  ordered  as  follows: 

"In  case  Daniel  Lane,  the  Petitioner's  husband,  do  not  present  himself 
in  Court,  within  the  space  of  six  months  from  date  hereof  and  purge  him- 
self from  the  crime  of  incest  with  which  he  is  accused.  Letters  of  Divorce 
and  Separation  shall  be  granted  to  the  Petitioner."  ** 

In  the  October  following  the  granting  of  divorce  to  Daniel 
Denton  in  1672,  the  court  of  assizes  allowed  the  wife  of  Denton 
to  marry  again.  In  October,  1670,  the  court  of  assizes  granted  to 
Rebecca  Leveridge,  a  divorce  from  her  husband,  Eleazer  Lever- 
idge  for  his  alleged  impotency."  In  the  same  month  the  governor 
and  council  granted  a  divorce  to  Thomas  Pettit  from  his  wife 
Sarah  Pettit  on  the  ground  of  adultery,  and  a  divorce  to  Mary 
Cole  from  Samuel  Sutton,  on  the  ground  of  bigamy  of  the  de- 
fendant. 

That  there  was  a  need  of  jurisdiction  upon  this  subject  does 
not  admit  of  doubt,  and  the  lack  seems  to  have  been  deplored,  for 
the  parties  desiring  divorce  were  compelled  to  resort  to  the  courts 
of  England.  Writing  in  1769,  Lieutenant  Governor  Cadwalader 
Colden  said  that  the  power  to  grant  divorces,  which  the  early 
governors  of  the  province  had  assumed  had  fallen  into  disuse 
after  the  revolution  of  1688,  and  that  there  was  no  court  that 
could  give  this  remedy  to  ill-assorted  couples.  At  the  same  time 
he  remarked  that  "in  neighboring  colonies,  a  divorce  is  more 
easily  obtained  than  perhaps  in  any  other  Christian  country," 
and  he  says  further 


43.  "Documents   Relative   to   the   Colonial   History   of   the   State  of 
New  York,"  by  E.  B.  O'Callaghan,  M.  D.,  LL.D.,  vol.  II,  p.  704. 

44.  "History  of  Long  Island,"  by  B.  F.  Thompson,  vol.  I,  p.  256. 

318 


HISTORY  OF  NEW  YORK 

"Query  whether  this  may  not  be  for  the  advantage  of  the  new  coun- 
try, which  once  peopled,  it  is  certain  that  the  natural  increase  of  people  in 
New  England  has  been  very  great,  perhaps  more  than  in  any  of  the  other 
English  colonies."" 


45.    Colden's  Letters  in   "Publications  of  the   New  York  Historical 
Society,"   1868,  p.   187. 


319 


CHAPTER  VIII 
The  Beginnings  of  Statehood 


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Alexander  Hamilton 


b-jiiii 


Lawyer,  Soldier  and  Statesman;  served  on  Washington's 
staff-  Member  of  Continental  Congress ;  Member  of  Assembly ; 
Delegate  to  Convention  which  framed  United  States  Constitu- 
tion; Secretary  of  the  Treasury  in  Washington's  Cabinet;  de- 
clined office  of  Chief  Justice  of  United  States. 


CHAPTER  VI II 

The  Beginnings  of  Statehood 

1778— 1847 

REORGANIZATION  AFTER  THE  CLOSE  OF  THE  REVOLUTION — A 
JUDICIARY  SYSTEM  UNDER  THE  STATE  GOVERNMENT  ESTAB- 
LISHED ON  A  CONSTITUTIONAL  BASIS — SOME  COURTS  CON- 
TINUED  AS   THEY    WERE   IN    THE   COLONIAL   PERIOD SEVENTY 

YEARS  OF  A  GREAT  COURT  OF  CHANCERY — THE  FAMOUS  CHAN- 
CELLORS AND  THEIR  CAREERS — AN  ADMIRALTY  COURT  FOR  A 
FEW  YEARS — GRr\DUAL  EVOLUTION  OF  A  NEW  COURT  OF 
APPEALS OTHER  COURTS  IN  THE  FIRST  HALF  OF  THE  NINE- 
TEENTH   CENTURY. 

When  the  War  for  Independence  broke  out  in  1776,  the 
courts  then  in  existence  were  the  justices'  courts,  the  courts  of 
sessions  and  the  courts  of  common  pleas,  the  supreme  court, 
the  court  of  admiralty,  the  prerogative  court,  the  court  of  the 
governor  and  council,  and  the  court  of  chancery.  The  charac- 
ter of  these  courts  and  the  powers  which  were  accorded  to  and 
exercised  by  them,  have  been  fully  described  in  preceding  chap- 
ters of  this  work. 

No  sooner  had  the  open  revolt  of  the  colonists  practically 
severed  them  from  English  domination,  than  the  power  of  these 
courts  naturally  became  nugatory.  Only  in  those  sections  where 
the  royalist  rule  was  still  in  force  had  they  any  standing.  This 
was  mostly  in  New  York  City  and  Westchester  county.  Else- 
where the  colonists  refused  to  recognize  them,  and  generally 
throughout  the  Colony,  which  was  soon  to  become  a  State,  there 

323 


LEGAL  AND  JUDICIAL 

was  merely  a  rudimentary  exercise  of  legal  authority  and  an  in- 
formal recognition  of  the  restrictions  of  law  in  the  conduct  of 
affairs  of  everyday  life.  In  some  communities  courts  were  tem- 
porarily instituted,  but  for  the  most  part  their  activity  was  con- 
fined to  the  hearing  of  complaints  against  suspected  Tories,  and 
the  inflicting  of  such  punishments  upon  them  as  the  public  spirit 
of  the  time  and  place  most  favored. 

Such  a  chaotic  condition  could  not  be  expected  to  continue 
indefinitely,  and  therefore  one  of  the  most  important  things  to 
the  consideration  of  which  the  Constitutional  Convention  of  1777 
was  compelled  to  address  itself,  was  the  reinstatement  of  the  rule 
of  law  and  order,  and  the  establishment  of  courts.  The  conven- 
tion recognized  the  colonial  courts  already  in  existence,  with  the 
exception  of  the  prerogative  court  and  the  court  of  the  gover- 
nor and  council.  Other  courts  were  continued  under  the  same 
names  that  they  had  before  borne,  practically  in  the  same  form, 
and  with  the  same  powers  and  jurisdiction.  There  was  this 
important  difference  in  them,  however :  heretofore,  while  they 
had  been  in  a  measure  the  creatures  of  the  legislature  of  the  pro- 
vince, they  had  really  existed  only  under  the  authority  and  control 
of  the  King's  prerogative,  as  represented  in  his  governor  and 
council  of  the  Province.  From  this  time  on,  however,  they  had 
a  constitutional  foundation  and  existence,  having  been  brought 
into  power  directly  by  the  representatives  of  the  people,  and  being 
responsible  only  to  the  people  through  the  executive  and  legisla- 
tive officials  of  the  State.  It  was  an  independent  judiciary  of  pop- 
ular and  democratic  character,  and  forever  emancipated  from 
anything  that  savored  of  foreign  or  extraneous  origin  or  control. 

It  was  early  deemed  necessary  to  free  the  new  courts  from 
all  influence  that  might  in  any  degree  be  suspected  of  Toryism. 
Almost  immediately  after  they  had  been  established,  measures 

324 


HISTORY  OF  N  EIF  YORK 

to  that  end  were  taken.  Many  of  the  prominent  attorneys  and 
counscllors-at-law  had  either  sided  with  the  Crown,  or  at  least 
were  known  to  be  lukewarm  toward  the  Colony,  and  they  were 
looked  upon  with  much  disfavor  by  the  patriots.  Accordingly, 
an  act  was  passed  in  1779  which  recited  that  many  persons  had 
been  licensed  to  plead  and  practice  as  attorneys,  solicitors,  and 
counsellors-at-law  in  the  several  courts  of  law  and  equity  within 
the  State,  while  the  same  was  under  the  government  of  the  king 
of  Great  Britain,  as  the  Colony  of  New  York,  and  that,  regard- 
less of  the  duty  which  they  owed  to  their  oppressed  country, 
some  of  them  had  gone  over  to  and  put  themselves  under  the  pro- 
tection of  the  armies  of  the  King,  while  others  had  conducted 
themselves  in  such  a  neutral  or  equivocal  manner  as  had  justly 
rendered  them  suspected  of  disaffection  to  the  freedom  and  inde- 
pendence of  the  State.  The  act  further  declared  that  it  would  be 
inconsistent  with  the  welfare  of  the  State  that  such  persons 
should  be  allowed  to  plead  and  practice  in  any  courts  within  the 
same,  and  that,  as  the  constitution  had  made  subject  to  the  rules 
and  orders  of  the  supreme  court  only  such  attorneys,  solicitors 
and  counsellors-at-law  as  should  thereafter  be  appointed,  the  act 
suspended  all  licenses  to  plead  or  practice  granted  to  attorneys, 
solicitors  and  counsellors-at-law  before  the  twenty-first  day  of 
April,  in  the  first  year  of  the  Independence  of  the  State. 

The  act  also  provided  that  persons  so  suspended  were  entitled 
to  have  a  writ  of  inquiry  into  their  political  character  issued  to 
the  sheriff  of  the  county.  The  sheriff  thereupon  summoned  a 
jury,  which  was  directed  to  inquire  whether  the  person  suspended 
had  uniformly  and  consistently  conducted  himself  as  a  good  and 
zealous  friend  of  the  American  cause.  If  it  appeared  that  he 
had  so  conducted  himself,  he  was  restored  to  his  full  privileges 
as  an  attorney,  solicitor,  and  counsellor-at-law.    By  chapter  13 

325 


LEGAL  AND  JUDICIAL 

of  the  Laws  of  the  Fifth  Session,  this  act  was  modified  somewhat 
so  that  the  attorney  general  was  entitled  to  notice  of  the  time 
and  place  of  the  execution  of  the  writ  of  inquiry. 

In  1779  an  act  was  passed  by  the  Legislature,  creating  a 
council  or  committee  for  the  southern  part  of  the  State.  That 
part  of  the  State  was  then  in  possession  of  the  royalists.  This 
council  consisted  of  the  governor,  the  members  of  both  houses  of 
the  legislature,  the  chancellor,  the  justices  of  the  supreme  court, 
the  attorney  general  of  the  state,  and  the  county  judges.  It 
was  provided  that  any  seven  members  of  this  council,  of  whom 
the  governor  should  be  one,  might  act  in  control  of  the  affairs 
of  that  part  of  the  State  for  sixty  days  after  the  convening  of  the 
council.  When  the  British  troops  had  departed  from  New  York 
city  in  1783,  this  council  was  organized  and  continued  in  session 
until  the  assembling  of  the  legislature  in  February  of  the  suc- 
ceeding year.  Various  ordinances  were  enacted  by  it,  and  these 
were  subsequently  ratified  and  made  legal  by  the  legislature. 

When  the  whilom  Colony  became  a  State,  its  population, 
white  and  black,  was  about  175,000.  It  was  divided  into  twelve 
counties — Suffolk,  Queens,  Kings,  Richmond,  New  York,  West- 
chester, Dutchess,  Cumberland,  Gloucester,  Charlotte,  Orange, 
Ulster,  Albany,  and  Tryon.  New  York  county  was  not  the  lar- 
gest, although  it  was  the  commercial  center.  Albany  county  had 
42,706  inhabitants,  Dutchess  22,404,  while  New  York  had  but 
21,863.  The  constitution  of  1777  gave  Albany  county  ten  mem- 
bers of  the  assembly.  New  York  nine,  Dutchess  seven,  and  West- 
chester six.  The  only  newspaper  outside  of  the  city  of  New 
York  was  the  Gazette,  which  was  established  in  Albany  in  1771. 
There  were  few  roads,  most  of  them  poor,  and  means  of  com- 
munication were  so  slow  that  news  of  the  battle  of  Lexington  did 
not  reach  the  city  of  New  York  until  the  24th  of  April.     The 

326 


i 


''i4.^JiW:?we^M^ 


Samuel  Blatchford 


11 


SAMUEL  BLATCHFORD. 

(1820-1893). 

Lawyer,  Law  Reporter  and  Jurist ;  law  partner  of  William 
H.  Seward;  Judge  United  States  District  Court,  Southern  Dis- 
trict of  New  York,  1867-78;  Circuit  Judge  for  Second  Circuit, 
1878-82;  Associate  Justice  United  States  Supreme  Court, 
1882-93. 


HISTORY  OF  NEW  YORK 

inhabitants  were  mostly  of  Dutch  origin,  although  there  were 
many  settlers  of  English  descent,  notably  in  Suffolk  county. 

An  act  passed  by  the  legislature  in  May,  1778,  gives  a  good 
idea  of  the  primitive  condition  of  the  country  at  this  time.  It 
was  entitled,  "An  Act  to  ascertain  the  places  from  whence  the 
mileage  fees  of  the  respective  sheriffs  of  the  several  counties  in 
the  state  shall  be  computed."  The  act  provided,  "That  the  sheriff 
of  Suffolk  County  shall  compute  his  fees  from  a  path  commonly 
known  as  the  Wading  River  Path,  about  seven  miles  to  the  west- 
ward of  the  County  Hall  in  said  County,  at  the  junction  of  said 
path  with  the  County  Road  which  passes  through  Nassau  Island, 
about  the  middle  thereof;  the  sheriff  of  Queens  County  from  a 
certain  pond  commonly  called  Wind  Mill  Pond,  near  the  north 
side  of  Hempstead  Plains;  the  sheriff  of  Dutchess  County  from 
the  house  wherein  Myndert  Vielle,  Esq.,  now  lives  in  Beekman's 
Precinct;  the  sheriff  of  Westchester  County  from  the  house  of 
William  Ogden  in  North  Castle;  the  sheriff  of  the  County  of 
Ulster  from  the  house  of  Mrs.  Ann  DuBois,  in  the  neighborhood 
of  the  mountain  called  Anthony's  Nose  in  said  County;  the 
sheriff  of  the  County  of  Charlotte  from  the  meeting-house  in  the 
town  of  New  Perth,  and  the  sheriff  of  the  County  of  Gloucester 
from  the  meeting-house  in  the  town  of  Newbury  in  said  County." 

Notwithstanding  the  professional  and  popular  opposition  to 
the  court  of  chancery  during  the  colonial  period,  a  court  of  that 
character  was  considered  to  be  necessary  under  the  democratic 
State  government.  In  the  first  constitutional  convention  this 
court  was  recognized  as  being  then  in  existence,  and  Robert  R. 
Livingston  was  appointed  to  be  the  first  chancellor  of  the  State. 

Robert  R.  Livingston  was  a  member  of  the  celebrated  New 
York  Livingston  family,  a  great-grandson  of  Robert  Livingston, 
the  founder  of  the  family  in  America.    His  grandfather,  Robert 

327 


LEGAL  AND  JUDICIAL 

Livingston,  was  a  lawyer  of  the  colonial  period,  and  his  father, 
Robert  R.  Livingston,  was  a  judge  of  admiralty  in  1760;  a 
justice  of  the  Provincial  supreme  court,  1763 ;  a  member  of  the 
Provincial  Congress  from  Dutchess  county,  1759-1768;  and  oth- 
erwise prominent  in  the  public  affairs  of  the  period  in  which  he 
lived. 

Robert  R.  Livingston,  the  second  of  the  name,  was  born 
in  New  York  City,  November  27,  1746,  and  died  at  the  Livingston 
county  seat,  Clermont,  New  York,  February  26,  181 3.  He  grad- 
uated from  Kings  College,  now  Columbia  University,  in  1765, 
and  was  admitted  to  practice  law  in  1773,  beginning  in  partner- 
ship with  the  distinguished  John  Jay.  For  a  time  he  was  recorder 
of  the  city  of  New  York  until  he  was  displaced  by  loyalist  influ- 
ence. In  1775  he  was  a  member  of  the  Provincial  Assembly,  and 
subsequently  a  delegate  to  Congress.  In  1776  he  was  a  member 
of  the  committee  in  Congress  which  drew  up  the  Declaration 
of  Independence.  His  name  was  not  appended  to  that  great 
paper,  for  the  reason  that  he  was  called  to  other  duties  as  a 
member  of  the  New  York  Provincial  Congress.  Prominent  in 
the  New  York  State  Convention  of  1777,  he  was  elected  the 
first  Chancellor  of  the  State,  and  held  that  office  until  1801.  Dur- 
ing part  of  this  time,  1799-1781,  he  was  a  delegate  to  the  Con- 
tinental Congress.  From  1781  to  1783  he  was  Secretary  of  For- 
eign Affairs,  and  in  1788  was  chairman  of  the  New  York  Con- 
vention which  ratified  the  Federal  Constitution.  When  Wash- 
ington was  first  inaugurated  President  of  the  United  States,  Liv- 
ingston administered  the  oath  of  office  to  him. 

Resigning  his  chancellorship  in  1801,  he  was  appointed  Min- 
ister to  France  by  President  Jefferson,  and  in  1803  was  instru- 
mental in  effecting  the  purchase  from  France  of  the  Louisiana 
Territory,  the  most  important  transfer  of  territory  ever  made  by 

328 


Robert  R.  Livingston 


•  1/ 


.sonBiH  oJ  i9lzinil/. 


;•.'*?#•;  4;^*/t^K« 


ROBERT  R.  LIVINGSTON. 

(1746-1813). 

Jurist,  Statesman  and  Diplomat;  Recorder  of  New  York; 
Member  of  Assembly:  Delegate  to  Continental  Congress;  Sec- 
retary of  Foreign  Affairs  under  Confederacy;  Member  of  First 
Constitutional  Convention  of  New  York  ;  first  Chancellor  of  New 
York ;   Minister  to  France. 


HISTORY  OF  N  EW  YORK 

the  United  States.  He  became  interested  with  Robert  Fulton 
in  the  subject  of  steam  navigation,  and  was  associated  with  him 
in  the  building  of  the  celebrated  "Clermont"  steamer.  During 
the  concluding  portion  of  his  life  he  was  engaged  in  agricultural 
pursuits,  and  wrote  much  upon  that  subject.  Later  generations 
have  not  been  able  to  profit  by  his  opinions  as  chancellor,  for 
the  practice  of  handing  down  written  opinions  had  not  been 
adopted  in  his  time ;  and  he  has  left  nothing  that  would  enable  us 
to  guage  his  ability  as  a  jurist.  Considering  his  high  standing  as 
a  lawyer  and  as  a  statesman,  it  is  safe  to  say  that  his  opinions 
were  of  undoubted  importance  and  value.  Thomas  Jeflferson 
wrote  of  him,  "Robert  R.  Livingston  is,  in  every  sense  of  the 
word,  a  wise,  good  and  great  man,  one  of  the  ablest  of  Ameri- 
can lawyers  and  statesmen." 

"Decisions  of  Chancellor  Livingston  bearing  on  jurisprudence  and  pre- 
served in  the  records  of  the  council  of  revision,  indicate  the  same  qualities 
which  so  distinguished  his  career  as  a  statesman  and  diplomat."* 

As  has  been  seen,  the  chancery  court  had  fallen  largely  into 
disuse  in  the  later  years  of  the  colonial  period,  and  it  does  not 
appear  to  have  had  any  considerable  amount  of  business  even 
during  the  early  part  of  its  career  under  the  Constitution  of  the 
State.  Probably  very  little  if  any  business  was  transacted  in  it 
during  the  revolution.  It  was  evidently  impossible  for  Living- 
ston, the  first  chancellor,  to  do  much  court  work  while  the  city 
of  New  York  was  in  the  hands  of  the  British  and  the  country 
outside  was  in  a  state  of  disturbance.  And  then,  also  much  of 
the  time  he  was  engaged  as  Secretary  of  Foreign  Aflfairs  for  the 
United  States,  1781-1783,  and  that  necessarily  took  him  from  the 


I.    "Observations  on  the  Particular  Jurisprudence  of  New  York,"  by 
Robert  Ludlow  Fowler,  in  "Albany  Law  Journal",  vol.  XXIH,  p.  287. 

329 


LEGAL  AND  JUDICIAL 

exercise  of  court  duty.  After  peace  had  been  declared  in  1783, 
he  was  reappointed  to  the  chancellorship,  for  the  reason  that 
some  doubt  had  arisen  as  to  the  validity  of  his  having  held  the 
office  during  the  time  that  he  was  otherwise  in  public  service 
as  Secretary  of  Foreign  Affairs.  Work  in  the  court  undoubtedly 
commenced  soon  after  this  time,  but  the  records  of  it  do  not  date 
back  earlier  than  June,  1785.^ 

The  first  court  recorded  in  the  minutes  which  have  been 
preserved,  was  held  in  the  city  hall  in  the  city  of  New  York,  and 
the  first  case  appearing  in  the  records  was  that  of  Thomas  Bardill 
vs.  Lambert  Moore.  In  all,  six  cases  came  before  the  court  on 
that  day.  On  the  twenty-eighth  of  June,  the  court  was  held  at 
Clermont,  in  the  manor  of  Livingston,  and  on  the  twenty-eighth 
and  twenty-ninth  of  the  ensuing  month,  it  was  held  in  the  city  of 
Albany.  In  August  there  was  a  session  in  Clermont,  but  on  the 
first  day  of  the  ensuing  October  the  court  sat  again  in  New  York. 
Among  the  counsellors  who  appeared  before  the  court  were  Mor- 
gan Lewis,  Robert  Troup,  Brockholst  Livingston,  Alexander 
Hamilton,  Aaron  Burr,  John  Lansing,  Egbert  Benson  and  Ed- 
ward Livingston. 

On  December  7,  1785,  at  the  court  held  in  the  chancellor's 
chambers  in  the  city  of  New  York,  Chancellor  Livingston  ordered 
"Mr.  John  Lansing  to  transmit  to  the  registry  of  the  court  all 
the  rules  of  this  court  as  were  in  his  possession,  together  with  all 
other  papers  belonging  to  the  court."  Whatever  rules  may  have 
been  then  in  existence  would  appear  to  have  been  those  of  the 
court  in  its  colonial  existence.  The  first  rules  relating  to  the  court 
under  the  state  government  were  made  by  Chancellor  Livingston 
in  1787.* 


2.  "Minutes  of  the  Chancery  Court,"  June,  1785,  to  April,  1789. 

3.  "Minutes  of  the  Chancery  Court",  vol.  III. 


HISTORY  OF  NEfV  YORK 

By  the  legislative  act  of  May,  1778,  masters  and  examiners 
were  appointed  by  the  council  of  appointment,  while  the  register 
and  the  clerks  received  their  appointment  from  the  chancellor  to 
serve  during  pleasure.  In  1804,  the  office  of  assistant-register 
was  established  in  New  York. 

John  Lansing,  Jr.,  who  at  the  time,  was  chief  justice  of  the 
supreme  court,  was  promoted  to  fill  the  position  vacated  by 
Chancellor  Livingston  in  1801,  and  he  retained  the  office  until 
October,  1814,  when  by  reason  of  age  he  became  non-eligible  for 
further  service  on  the  bench.  Lansing  was  born  in  Albany,  Janu- 
ary 30,  1754,  was  graduated  from  Kings  College,  and  then  read 
law  with  Robert  Yates  in  Albany,  and  James  Duane  in  New  York 
City.  He  began  the  practice  of  law  in  Albany ;  from  1780  to  1784 
was  a  member  of  the  Assembly,  from  that  city;  from  1784  to 
1786  was  a  representative  to  the  Continental  Congress;  in  1786 
was  speaker  of  the  New  York  Assembly,  and  in  the  same  year 
was  mayor  of  Albany ;  in  1787  was  again  a  delegate  to  the  Con- 
tinental Congress  and  a  delegate  from  New  York  to  the  conven- 
tion to  formulate  a  Federal  Constitution;  and  in  1788  was  a 
delegate  to  the  New  York  convention  called  to  ratify  the  Federal 
Constitution.  From  1788  to  1798  he  was  one  of  the  justices  of 
the  supreme  court  of  New  York,  and  was  the  chief  justice  of 
that  court  from  1798  to  1801,  when  he  was  appointed  chancellor 
to  succeed  Livingston.     He  retired  in  1814. 

While  sitting  as  Chancellor,  Lansing  took  part  in  the  cause 
celebre  of  "the  matter  of  Yates".  One  of  the  rules  of  the  Chan- 
cery Court  required  solicitors  to  bring  equity  suits  in  their  own 
names,  and  not  in  the  name  of  another  solicitor.  John  Yates,  a 
prominent  member  of  the  Albany  bar,  but  not  a  solicitor  in 
chancery,  commenced  through  a  chancery  solicitor  a  suit  in  Lan- 
sing's court.     As  soon  as  the  chancellor  discovered  that  Yates 

331 


LEGAL  AND  JUDICIAL 

was  not  a  member  of  his  bar,  he  committed  him  to  jail  for  con- 
tempt. Yates  retained  Thomas  Addis  Emmet,  who  apphed  to 
Ambrose  Spencer,  one  of  the  justices  of  the  supreme  court,  for 
a  habeas  corpus.  This  being  granted,  the  prisoner  was  set  free. 
Lansing  again  committed  him  to  jail,  notwithstanding  the  former 
release.  Emmet  applied  to  the  supreme  court  in  banc  for  another 
habeas  corpus,  which  was  denied  by  a  divided  court.  Emmet 
took  the  case  to  the  court  for  the  correction  of  errors,  and  the 
supreme  court  was  reversed  and  Yates  was  freed;  then  he 
brought  an  action  for  damages  against  the  chancellor,  but  in  this 
he  was  defeated,  it  being  decided  that  a  judge  was  not  indi- 
vidually liable  for  his  judicial  acts. 

Chancellor  Lansing  mysteriously  disappeared  in  1829,  and 
his  disappearance  has  always  been  one  of  the  unsolved  mysteries 
of  New  York  City.  He  had  come  from  Albany,  and  was  stopping 
at  the  City  Hotel,  on  Broadway,  where  he  breakfasted  and  dined 
at  midday.  Shortly  after  dinner  he  was  observed  to  leave  the 
hotel  supposedly  for  the  purpose  of  mailing  letters.  From  that 
moment  he  was  never  seen  or  heard  of  again.  What  became  of 
him  has  never  been  discovered  to  this  day.  Lansing's  opinions 
are  in  the  same  category  as  those  of  his  predecessor.  As  yet 
there  were  no  court  reporters,  and  such  opinions  as  were  delivered 
did  not  survive  the  recollection  of  the  hour. 

Chancellor  James  Kent,  who  succeeded  Lansing  in  1814, 
ranks  among  the  very  first  of  American  jurists.  He  was  born  in 
Putnam  county.  New  York,  July  31,  1763,  and  died  in  New  York 
City,  December  12,  1847.  He  descended  from  the  famous  Kent 
family  of  Connecticut,  and  his  father.  Moss  Kent,  who  was  sur- 
rogate of  Rensselaer  county.  New  York,  died  in  1794.  James 
Kent  was  graduated  from  Yale  College  in  1781,  and  the  same 
year  began  the  study  of  law  with  the  celebrated  Egbert  Benson, 

332 


Brockholst  Livingston 


BROCKHOLST   LIVINGSTON. 

(1 757-1823). 

Son  of  Governor  William  Livingston,  of  New  Jersey,  and 
brother  of  Robert  R.  Livingston,  Chancellor  of  Nev^^  York;  sol- 
dier in  Continental  Army  in  Revolutionary  War.  attaining  the 
rank  of  lieutenant-colonel ;  Justice  Supreme  Court  of  New 
York,  1802-7:  Associate  Justice  United  States  Su])reme  Court. 
1807-2J?. 


HISTORY  OF  N  EJV  YORK 

tlie  first  attorney  general  of  the  State,  and  at  that  time  the 
acknowledged  leader  of  the  New  York  bar.  In  1785  he  was 
admitted  to  the  bar  as  an  attorney,  and  in  1787  as  counsellor. 
After  two  years'  practice  in  Poughkeepsie,  he  was  elected  to  the 
State  Legislature  in  1790,  and  re-elected  in  1792  as  a  Federalist. 
In  the  latter  year  he  took  prominent  part  in  the  contest  for  the 
governorship  between  John  Jay  and  George  Clinton,  favoring  the 
election  of  the  former. 

Removing  to  New  York  City  in  1793,  he  quickly  took  a  posi- 
tion in  the  foremost  ranks  of  the  bar  of  that  city,  which  then 
included  such  eminent  lawyers  as  Aaron  Burr,  Alexander  Hamil- 
ton, Josiah  Ogden  Hoffman,  Brockholst  Livingston,  Egbert  Ben- 
son and  James  Duane.  He  was  appointed  a  Master  in  Chancery 
for  the  city  of  New  York,  and  was  also  a  professor  of  law  in 
Columbia  College.  After  serving  another  term  in  the  legislature 
he  became  Recorder  of  the  city  of  New  York  in  1797,  but  in  less 
than  a  year  resigned  that  position  to  accept  an  appointment  as 
justice  of  the  supreme  court,  to  succeed  John  Lansing,  being 
made  chief  justice  of  that  court  in  1804.  He  served  upon  the 
bench  of  the  supreme  court  until  he  was  advanced  to  the  chan- 
cellorship in  1814.  Already  in  the  supreme  court  he  had  intro- 
duced the  practice  of  handing  down  written  opinions,  and  he 
carried  that  practice  with  him  to  the  chancery  court.  Imme- 
diately after  his  appointment  as  chancellor,  he  secured  from  the 
legislature  the  passage  of  an  act  providing  for  a  reporter  of  the 
chancery  court,  and  William  Johnson  was  selected  to  fill  that 
position.  Johnson  had  been  a  reporter  of  the  supreme  court 
while  Kent  sat  as  chancellor. 

The  condition  of  chancery  jurisprudence  in  America,  and 
especially  in  New  York,  and  the  methods  pursued  by  Kent  in  de- 

333 


LEGAL  AND  JUDICIAL 

termining  and  administrating  the  law,  were  well  summoned  up  by 
him  as  follows: 

"For  the  nine  years  I  was  in  that  office  there  was  not  a  single  decision, 
opinion,  or  dictum  of  either  of  my  two  predecessors  cited  by  me,  or  even 
suggested.  I  took  the  court  as  if  it  had  been  a  new  institution  and  never 
before  known  in  the  United  States.  I  had  nothing  to  guide  me,  and  was 
left  at  liberty  to  assume  all  such  English  chancery  powers  and  jurisdiction 
as  I  thought  applicable  under  our  constitution.  This  gave  me  grand  scope, 
and  I  was  only  checked  by  the  revision  of  the  senate  or  court  of  errors. 
I  opened  the  gates  of  the  court  immediately,  and  admitted  almost  gratui- 
tously the  first  year  sixty-five  counsellors,  though  I  found  there  had  been 
but  thirteen  admitted  for  thirteen  years  before.  Business  flowed  in  with 
rapid  tide.  The  result  appears  in  the  seven  volumes  of  Johnson's  'Chan- 
cery Reports.'  My  course  of  study  in  equity  jurisprudence  was  very  much 
confined  to  the  topics  elected  by  the  cases.  I  had  previously  read  the  mod- 
ern equity  reports  down  to  that  time,  and  of  course  I  read  all  the  new 
ones  as  fast  as  I  could  procure  them.  I  remember  reading  Peere  Wil- 
liams as  early  as  1792,  and  made  a  digest  of  the  leading  doctrines.  I  al- 
ways took  up  the  cases  in  their  order,  and  never  left  one  until  I  had  fin- 
ished it.  This  was  only  doing  one  thing  at  a  time.  My  practice  was  first 
to  make  myself  perfectly  and  accurately  (mathematically  accurately)  mas- 
ter of  the  facts.  It  was  done  by  abridging  the  bill,  and  then  the  answer, 
and  then  the  depositions,  and  by  the  time  I  had  done  this  slow  and  tedious 
process,  I  was  master  of  the  case,  and  ready  to  decide  it.  I  saw  where 
justice  lay,  and  the  moral  sense  decided  the  case  half  the  time.  Then  I 
sat  down  to  search  the  authorities  until  I  had  exhausted  my  books.  I 
might  once  in  a  while  be  embarrassed  by  a  technical  rule,  but  I  most  always 
found  principles  suited  to  my  view  of  the  case.  My  object  was  to  discuss 
a  point  so  as  never  to  be  teased  with  it  again,  and  to  anticipate  an  angry 
and  vexatious  appeal  to  popular  tribunal  by  disappointed  counsel." 

While  still  chancellor,  Kent  became,  in  1822,  a  member  of 
the  convention  to  revise  the  State  Constitution,  and  in  1823, 
having  attained  the  age  of  sixty,  he  resigned  the  chancellorship, 
because  the  constitution  inhibited  his  holding  office  after  that 
age.  His  retirement  was  contemplated  by  members  of  the  bar 
with  the  deepest  concern.  Those  residing  in  the  city  of  New 
York  appointed  a  committee  to  prepare  an  address  on  the  occa- 

334 


James  Kent 


■nu]   h'>f(>t:?'::rT:t  ■( 


JAMES   KENT. 

(1763-1847). 

Distinguished  Jurist  and  Commentator ;  Member  of  Assem- 
bly. 1790-92-96;  Recorder  of  Xew  York.  1797;  Justice  Supreme 
Court,  1798-1804:  Chief  Justice,  1804-14;  Chancellor,  1814-23; 
Member  Constitutional  Convention  of  1821  ;  author  of  "Com- 
mentaries on  American  Law." 


HISTORY  OF  NEW  YORK 

sion ;  this  was  adopted,  and  the  committee  was  requested  to  trans- 
mit the  report  to  him  at  Albany.  The  address  was  signed  by  all 
the  leading  lawyers  of  the  city,  and  expressed  their  regret  that 
his  term  of  service  had  expired. 

After  his  resignation,  Kent  removed  from  Albany,  where  he 
had  lived  while  chancellor,  to  New  York  City,  and  resumed  the 
delivery  of  law  lectures  at  Columbia  College.  He  also  practiced 
law  as  chamber  counsel.  Out  of  the  lectures  he  now  delivered 
grew  the  "Commentaries  on  American  Law,"  the  first  edition  of 
which  was  published  in  1826-30.  These  commentaries  have,  by 
their  learning,  range  and  lucidity  of  style,  won  for  him  a  high  and 
permanent  place  in  the  estimation  of  both  English  and  American 
jurists.  Many  eloquent  tributes  have  been  paid  to  the  character 
of  Chancellor  Kent,  and  to  his  great  ability  as  a  jurist.  Judge 
Dillon,  in  his  work  on  the  "Laws  and  Jurisprudence  of  England 
and  America,"  said  this  of  him: 

"The  American  bar  and  people  venerate  the  name  and  character  of 
Chancellor  Kent.  Simple  as  a  child  in  his  tastes  and  habits  throughout  his 
tranquil  and  useful  life ;  more  than  any  other  person  the  creator  of  the 
equity  system  in  this  country,  the  author  of  the  commentaries  which,  in 
accuracy  and  learning,  in  elegance,  purity  and  vigor  of  style,  rival  those 
of  Sir  William  Blackstone,  his  name  is  admired,  his  writings  prized,  his 
judgments  at  law  and  in  equity  respected  in  every  quarter  of  the  globe 
(and  in  no  where  more  than  in  England),  wherever  in  its  widening 
conquest  the  English  language,  which  is  the  language  of  freedom,  has  car- 
ried the  English  law." 

Others  have  spoken  no  less  earnestly  regarding  this  great 
jurist. 

"It  is  to  James  Kent  that  our  jurisprudence  owes  much  of  its  equity 
jurisprudence  and  a  large  part  of  our  common  law.  The  name  of  this 
great  lawyer  is  authority  to-day  in  Westminster  Hall  almost  as  unques- 
tioned as  in  our  own  country.  Wirt  said  Kent  knew  more  law  than  most  of 
the  other  judges  in  the  United  States  put  together.     He  may  reasonably 

335 


LEGAL  AND  JUDICIAL 

be  called  the  founder  of  the  equity  jurisprudence  of  this  country.  *  *  » 
Writing  the  first  expositions  of  this  great  branch  of  the  law,  he  naturally 
united  the  commentator  with  the  judge.  Nothing  can  surpass  the  learning, 
the  patience,  the  acuteness,  the  sound  sense  and  the  humanity  of  this  most 
modest  and  most  useful  of  the  many  great  citizens  to  whom  our  State 
stands  indebted  for  its  prosperity.'" 

Nathan  Sanford,  the  fourth  chancellor,  was  born  in  Suffolk 
county,  New  York,  November  5,  1777,  and  died  in  Flushing,  New 
York,  October  17,  1838.  After  studying  in  Yale  College,  he 
was  admitted  to  the  New  York  bar  in  1799,  and  began  the  prac- 
tice of  law  in  New  York  City.  Interest  in  public  affairs,  how- 
ever, soon  occupied  his  attention  almost  to  the  entire  exclusion 
of  his  professional  work.  He  served  two  terms  in  the  New  York 
Assembly,  being  speaker  of  the  Assembly  for  one  year,  and  also 
was  for  three  years  a  member  of  the  State  senate.  Twice  he 
was  a  member  of  the  United  States  senate,  his  first  term  being 
from  1815  to  1821,  and  his  second  1826  to  1831.  His  pro- 
fessional career  of  a  public  character  was  first  during  the  period 
of  1803  to  1816,  when  he  was  United  States  district  attorney,  and 
again  from  1823  to  1825  when  he  was  chancellor.  He  was  forced 
to  resign  from  that  latter  position  on  account  of  ill  health.  While 
he  was  United  States  district  attorney.  President  Jefferson 
appointed  him  United  States  commissioner  in  bankruptcy.  In 
his  official  capacity  he  had  charge  of  many  important  cases  con- 
nected with  the  international  difficulties  of  France  and  England 
and  the  war  of  1812,  and  his  success  in  handling  these  matters 
was  very  marked. 

Samuel  Jones,  the  fifth  chancellor,  came  of  the  Jones  fam- 
ily of  Long  Island,  which  was  founded  by  Thomas  Jones,  in 
1692.     Many  of  the  descendants  of  Thomas  Jones  in  successive 


4.     "Judicial    History   of  the   Commonwealth,"   by   Irving  Browne,   in 
'The  Public  Service  of  the  State  of  New  York,"  vol.  Ill,  p.  17. 


Samuel  Jones 


\ 


SAMUEL  JONES. 
(1 769- 1 853). 


Jurist:  Member  of  Assembly:  Recorder  of  New  York; 
Chancellor.  1826-28;  Chief  Justice  Superior  Court,  1828-47; 
Justice  Supreme  Court,   1847-49. 


HISTORY  OF  NEW  YORK 

generations  followed  the  profession  of  law,  and  several  of  them 
became  distinguished  in  the  profession  and  in  public  affairs  of  the 
period  in  which  they  lived.  The  chancellor  was  born  in  Cold 
Spring,  Long  Island,  a  son  of  Samuel  Jones,  who  was  an  eminent 
lawyer  and  jurist,  a  recorder  of  New  York  City,  1789-1797,  and 
the  first  comptroller  of  the  State,  1797-1799.  The  junior  Samuel 
Jones  was  not  less  distinguished  than  his  father.  He  was  gradu- 
ated from  Columbia  College  in  1790;  was  a  member  of  the 
assembly  of  New  York  State,  1812-1814;  a  recorder  of  the  city 
of  New  York  in  1825;  chancellor,  1826-1828;  chief  justice  of 
the  superior  court  of  the  City  of  New  York,  1828,  1847;  ^^'^  ^ 
justice  of  the  supreme  court  of  the  State,  1847- 1849. 

Reuben  H.  Walworth,  who  succeeded  Sam.uel  Jones,  was  the 
last  chancellor  of  the  State.  He  was  descended  from  William 
Walworth,  a  member  of  an  old  English  family,  who  emigrated 
to  America  and  settled  in  Connecticut  in  1671.  Born  in  Connec- 
ticut, October  26,  1787,  he  died  in  Saratoga  Springs,  New  York, 
November  2,  1867.  He  entered  upon  the  study  of  law  in  Troy, 
New  York,  at  the  age  of  seventeen,  and  was  admitted  to  practice 
at  the  bar  in  1809.  In  the  following  year  he  began  practice  in 
Plattsburgh,  and  soon  attained  distinction  as  one  of  the  most 
prominent  lawyers  in  the  northern  part  of  the  state,  becoming  a 
master  in  chancery  and  a  county  judge  within  a  few  years. 
From  1821  to  1825  he  was  a  member  of  Congress,  a  Judge  of 
the  Fourth  judicial  district  from  1823  to  1828,  and  from  1828 
until  1846  he  was  chancellor. 

Walworth  made  an  excellent  record  and  achieved  a  profes- 
sional standing  which  placed  him  well  alongside  all  his  predeces- 
sors in  the  high  office  which  he  held  for  eighteen  years.  He  was 
a  man  of  many  peculiarities.  One  of  his  weaknesses  was  a  fond- 
ness  for   boasting   of   his    descent    from   Walworth,    who   was 

337 


LEGAL  AND  JUDICIAL 

mayor  of  London  during  the  reign  of  Richard  II.,  and  was 
responsible  for  the  death  of  Watt  Tyler.  An  amusing  story  has 
been  told  in  this  connection  explaining  why  Walworth  failed  to 
be  appointed  to  the  chief  justiceship  of  the  United  States  Su- 
preme Court.  President  John  Tyler  was  upon  the  point  of  ten- 
dering this  appointment  to  the  chancellor,  when  he  was  informed 
of  the  latter's  pride  in  his  descent  from  Lord  Mayor  Walworth. 
President  Tyler  was  a  descendant  of  Watt  Tyler,  and  the  ani- 
mosities raging  between  the  two  distinguished  ancestors  of  these 
later  distinguished  men  influenced  the  President  to  withdraw  the 
name  of  the  chancellor  and  to  nominate  for  the  place  Samuel 
Nelson,  of  New  York,  who  held  the  seat  on  the  bench  of  the 
United  States  court  for  many  years.  One  authority  has  said  of 
Walworth : 

"Chancellor  Walworth  may  justly  be  regarded  as  the  great  artisan  of 
our  equity  laws.  In  some  sense  he  was  the  Bentham  of  America,  without  the 
bold  speculations  and  fantastical  theories  which,  to  a  certain  extent,  char- 
acterized the  great  British  jurist.  What  Bentham  did  in  removing  defects 
in  English  jurisprudence,  Walworth  did  in  renovating  and  simplifying  the 
equity  laws  of  the  United  States.  Justice  Story  pronounced  him  'the  great- 
est equity  jurist  living.'  Before  his  day,  the  Court  of  Chancery  in  New 
York  State  was  a  tribunal  of  ill-defined  powers  and  uncertain  jurisdiction 
— in  a  measure  subservient  to  the  English  Court  of  Chancery  in  its  pro- 
cedure. Chancellor  Walworth  abolished  much  of  this  subtlety,  many  of 
those  prolix  and  bewildering  formalities  which  had  their  origin  in  the  mid- 
dle ages.  He  reduced  the  practice  of  his  court  to  standard  rules,  which  he 
prepared  with  great  industry.  These  rules  greatly  improved  the  old  sys- 
tem of  equity  practice,  and  though  he  has  been  charged  with  thus  com- 
plicating the  Court  of  Chancery  with  expensive  machinery,  it  cannot  be 
gainsaid  that  with  Chancellor  Walworth  equity  was  the  soul  and  spirit  of 
the  law,  'creating  positive  and  defining  rational  law,  flexible  in  its  nature 
and  suited  to  the  fortunes,  cases,  and  reciprocal  obligations  of  men.'  The 
contents  of  fourteen  volumes  of  Paige  and  Barbour's  'Chancery  Reports,' 
containing  the  adjudications  in  his  own  court  and  a  large  part  of  the  mat- 
ter of  the  thirty-eight  volumes  of  Wendell,  Hill  and  Denio's  Reports, 
consisting  of  the  opinions  he  pronounced  in  the  court  of  errors,  attest  his 
vast  judicial  labors." 


HISTORY  OF  NEW  YORK 

By  the  act  of  March  21,  1823,  it  was  provided  that  the  duties 
of  the  judge  of  the  court  of  probate  should  devolve  on  the 
chancellor  of  the  chancery  court.  In  April,  1823,  following 
the  direction  of  the  Constitutional  Convention  of  1821,  the 
Legislature  passed  an  act  conferring  on  the  eight  circuit  judges 
equity  jurisdiction  concurrent  with  the  chancellor,  subject  to  the 
appellate  jurisdiction  of  the  chancellor.  It  was  also  provided 
that  each  circuit  judge  might  appoint  a  clerk  for  the  court  of 
equity  to  be  held  by  him,  the  said  clerk  to  perform  the  duties 
of  register.  Ultimately  these  courts  were  abolished  and  the  chan- 
cellor was  vested  with  general  equity  jurisdiction.  The  circuit 
judges  then  became  vice-chancellors  in  their  respective  circuits. 
Masters  and  examiners  were  appointed  by  the  governor  for  a 
term  of  three  years,  and  were  soon  removed.  In  1823  there  were 
five  hundred  and  ten  masters  and  twenty-five  examiners.  The 
business  of  the  court  increased  so  rapidly  in  the  first  forty  years 
of  its  existence  that  a  separate  vice-chancellor  was  appointed 
for  the  First  Circuit,  with  his  office  in  New  York  City,  and  in 
March,  1839,  an  assistant  vice-chancellor  was  appointed  for  the 
same  circuit.  In  March,  1839,  a  separate  vice-chancellor  was 
appointed  for  the  Fourth  District,  with  his  office  in  Rochester. 
In  accordance  with  the  action  of  the  Constitutional  Convention 
of  1846,  the  court  of  chancery  ceased  to  exist  in  July,  1847. 

The  chancellors  and  vice-chancellors  under  the  State  gov- 
ernment, with  the  dates  of  their  appointments  were : 

Chancellors:  Robert  R.  Livingston,  May  8,  1777;  John 
Lansing,  Jr.,  October  21,  1801 ;  James  Kent,  October  25,  1814; 
Nathan  Sanford,  August  i,  1823;  Samuel  Jones,  January  24, 
1826 ;   Reuben  W.  Walworth,  April  22,  1828. 

Vice-Chancellors :     William  T.  Mc  Coun,  March  16,  1831 ; 

339 


LEGAL  AND  JUDICIAL 

Lewis  D.  Sanford,  May  12,  1846;  Frederick  Whittlesey,  April 
16,  1839. 

Vice-Chancellors  of  the  First  Circuit,  New  York  City :  Mur- 
ray Hoffman,  April  15,  1839;  Lewis  D.  Sanford,  March  11, 
1843;  Anthony  L.  Robertson,  May  12,  1846. 

Robert  T.  McCoun,  the  first  vice-chancellor  of  the  First 
District,  was  a  native  of  New  York  and  one  of  the  prominent 
members  of  the  New  York  bar  during  the  first  half  of  the  nine- 
teenth century.  Continuing  as  vice-chancellor  from  the  time 
of  his  appointment  in  1831  until  the  abolition  of  the  court,  he  was 
then  elected  a  justice  of  the  supreme  court  in  the  Second  Dis- 
trict in  1847,  and  served  a  full  term.  After  that  he  retired  from 
the  active  practice  of  his  profession. 

Lewis  D.  Sanford,  who  was  appointed  assistant  vice-chan- 
cellor of  the  First  Circuit,  in  1843,  ^rid  became  vice-chancellor 
in  1846,  was  born  in  Ovid,  New  York,  June  8,  1807,  and  died 
in  Toledo,  Ohio,  July  2y,  1852.  A  year  after  the  court  of  chan- 
cery was  abolished,  he  became  a  justice  of  the  superior  court 
of  the  city  of  New  York,  and  continued  upon  that  bench  until 
his  death.  Among  his  most  important  contributions  to  the  juris- 
prudence of  the  State  were  four  volumes  of  the  "New  York 
Chancery  Reports",  1846-1850,  and  "The  New  York  Superior 
Court  Reports",  1849-1852. 

Frederick  Whittlesey,  vice-chancellor  of  the  Eighth  Judicial 
District,  1839-1847,  was  a  native  of  Connecticut,  and  died  in 
Rochester,  New  York,  September  19,  185 1.  He  was  graduated 
from  Yale  College  in  1818,  practiced  at  the  bar  in  Utica  and  in 
Rochester,  and  was  a  member  of  Congress,  1831-1835.  In  1847- 
1848  he  was  a  judge  of  the  state  supreme  court,  and  afterwards 
a  lecturer  on  law  in  Genesee  College. 

Murray  Hoffman,  a  son  of  Josiah  Ogden  Hoffman,  the  dis- 

340 


HISTORY  OF  NEW  YORK 

tinguished  lawyer,  was  born  in  New  York  City,  September  29, 
1791,  and  died  in  Flushing,  Long  Island,  May  17,  1878.  He  was 
graduated  from  Columbia  College  in  1809,  and  afterwards  was 
admitted  to  practice  law  in  New  York  City.  He  held  the  appoint- 
ment of  assistant  vice-chancellor  from  1839  to  1843,  and  in 
1853  was  appointed  a  judge  of  the  superior  court  of  New  York 
City,  remaining  on  that  bench  until  1861.  He  was  a  voluminous 
writer  on  legal  topics  and  some  of  his  most  important  works 
were :  "Offices  and  Duties  of  Masters  and  Chancery",  "Treatise 
on  the  Practice  of  the  Court  of  Chancery",  "Treatise  on  the 
Corporation  of  New  York  as  Owner  of  Property",  "Compilation 
of  the  Laws  Relating  to  the  City  of  New  York",  "Vice-Chan- 
cery Reports",  "Provisional  Remedies",  "Treatise  on  the  Law  of 
the  Protestant  Episcopal  Church  in  the  United  States",  and 
"Ecclesiastical  Law." 

Anthony  L.  Robertson,  who  was  vice-chancellor,  1846- 1847, 
was  born  in  New  York  City,  June  8,  1808,  and  died  in  the  city 
of  his  birth,  December  18,  1865.  He  graduated  from  Columbia 
College  in  1825,  was  admitted  to  practice  law,  and  soon  ranked 
high  in  his  profession.  After  his  service  in  the  chancery  court 
he  was  surrogate  of  New  York  City  in  1848;  a  judge  of  the 
superior  court  of  New  York  City  in  1859  ^"*i  1864;  and  chief 
justice  of  the  superior  court  in  1866. 

For  a  time  under  the  State  government,  the  admiralty 
court,  as  established  by  the  colonial  government,  continued  in 
existence.  Nearly  a  decade  and  a  half  before  the  revolution,  in 
1762,  Robert  Morris  was  commissioned  by  Governor  Monckton 
to  be  judge  of  the  court  of  vice-admiralty,  and  a  year  later 
Richard   Nicolls   received   from  the  higher  court  of   admiralty 

341 


LEGAL  AND  JUDICIAL 

in  England,  to  which  the  provincial  court  of  New  York  was 
subordinate,  the  appointment  of  register.  In  June,  1774,  accord- 
ing to  the  report  of  Governor  Tryon  to  the  Lords  of  Trade,  Judge 
Morris  and  Richard  Nicolls  were  still  holding  office,  and  Thomas 
Ludlow  was  marshal,  all  these  officers  serving  without  salary. 

In  1774,  Judge  Morris  resigned  his  commission  because  he 
chose  rather  to  cast  his  fortunes  with  the  colonists  in  the  impend- 
ing conflict.  On  November  25,  1775,  the  Continental  Congress 
recommended  that  the  several  Colonies  should  establish  courts 
which  should  adjudicate  such  questions  as  might  arise  concern- 
ing the  captures  on  the  seas  during  the  war,  and  it  advised  that  all 
trials  should  be  by  jury.  Following  this  recommendation,  the 
New  York  Provincial  Convention,  on  July  31,  1776,  authorized 
the  establishment  of  the  high  court  of  admiralty  for  the  State 
of  New  York,  and  appointed  Robert  Morris  Judge  of  the  court, 
John  MacKesson  register,  and  Robert  Benson  marshal  and  pro- 
vost-marshal. Morris  declined  the  office,  and  in  August  follow- 
ing, Lewis  Graham  was  appointed  to  the  position. 

Under  the  Articles  of  Confederation  in  1778,  a  Federal  court 
was  established  to  hear  appeals  from  the  State  courts  of  ad- 
miralty, this  court  being  termed  the  court  of  appeals  in  cases 
of  capture.  In  1786,  the  salaries  of  the  officers  of  this  court 
were  abolished  by  Congress,  upon  the  ground  that  the  war  was 
at  an  end,  and  a  special  provision  of  $10  a  day  for  actual  service 
thereafter  was  allowed. 

On  February  14,  1787,  the  State  legislature  passed  an  act 
protesting  against  the  encroachments  of  the  Federal  court  upon 
the  province  of  the  State  in  admiralty  matters,  and  declaring 
that  "the  Federal  court  should  have  no  recognizance  over  trans- 
actions within  the  state  limits."  When  the  Constitution  of  the 
United  States  was  adopted  by  New  York  State  in  1789,  the  ad- 

342 


HISTORY  OF  NEfr  YORK 

miralty  jurisdiction,  which  up  to  that  time  had  vested  in  the  state 
court  passed  to  the  United  States.  Thereafter,  admiralty  juris- 
diction was  vested  exclusively  in  the  Federal  courts,  and  the 
State  court  ceased  to  exist.  Since  that  time  admiralty  jurisdic- 
tion has  been  confined  to  the  United  States  district  court. 


As  has  been  shown  in  previous  chapters  of  this  work,  under 
the  Dutch  government  supreme  appellate  jurisdiction  was  vested 
in  the  director-general  and  his  council.  The  early  English 
government  followed  the  Dutch  precedent,  and  this  jurisdiction 
was  vested  in  the  governors  and  council,  who  represented  the 
King.  From  1665  to  1685  some  of  the  appellate  functions  were 
assigned  to  the  court  of  assize. 

In  the  legislation  of  1683,  and  also  in  that  of  1691,  provision 
■was  made  for  appeals  to  the  King  by  any  "inhabitant,  planter  or 
freeholder  *  *  *  from  any  judgment  or  decree.  *  *  * 
in  the  High  Court  of  Chancery  or  in  any  of  the  courts  of  Oyer 
and  Terminer  and  General  Gaol  Delivery."  It  was  required  that 
the  person  or  persons  appealing  should  "first  pay  all  cost  of  the 
decree  or  judgment  from  which  the  appeal  was  taken,  and  also 
all  the  debts,  costs  and  damages  adjudged  against  him  or  them 
in  any  other  suit  or  suits  within  the  province,  and  give  in  the 
sureties  recognizance,  double  the  amount  involved,  and  to  make 
return  within  twelve  months  after  the  appeal  or  appeals  are 
made  and  to  pay  all  costs,  damages  and  charges  if  Cast."  If  the 
appellant  did  not  make  return  within  the  said  twelve  months, 
execution  issued  against  him  or  his  sureties.  Appeals  were  lim- 
ited to  cases  which  involved  one  hundred  pounds  or  more.^ 

By  the  act  of  1691,  the  privilege  of  appeal  was  extended  to 


5.     "Colonial  Laws  of  New  York,"  vol.  I,  p.  128. 

343 


LEGAL  AND  JUDICIAL 

any  "sojourner  within  the  province,"  and  it  was  provided  that 
appeals  should  be  taken  from  "the  courts  of  mayor  and  aldermen 
and  courts  of  common  pleas,  to  the  supreme  court,  for  any  judg- 
ment above  the  value  of  twenty  pounds.  And  from  the  supreme 
court  to  the  governor  and  councill  for  any  judgment  above  the 
value  of  one  hundred  pounds,  and  from  the  governor  and  coun- 
cill to  their  majestyes  in  councill  for  any  decree  or  judgment 
above  the  value  of  three  hundred  pounds."*  Subsequently,  the 
supreme  court  had  appellate  jurisdiction  of  the  most  comprehen- 
sive character,  and  during  the  colonial  period  immediately  prior  to 
the  Revolution,  there  was  no  higher  tribunal  of  review.  The  only 
appeal  from  the  supreme  court  was  to  the  King  of  England. 

Necessity  for  an  independent  appellate  tribunal  which  should 
have  power  to  review  even  the  decisions  of  the  supreme  court, 
was  felt  long  before  the  colonial  period  came  to  an  end.  When 
the  convention  of  1777  convened,  the  subject  came  up  as  one  of 
the  most  important  matters  to  be  considered,  and  for  this  purpose 
a  court  of  last  resort,  called  the  court  for  the  trial  of  impeach- 
ments and  the  correction  of  errors,  was  established.  Following 
the  articles  of  the  Constitutional  Convention,  the  legislature 
passed  an  act  organizing  this  court,  November  23,  1784.  All  the 
errors  in  the  court  of  chancery,  the  supreme  court,  the  court 
of  probate  and  the  admiralty  court  (except  cases  of  capture) 
were  to  be  corrected  by  the  new  court;  the  proceedings  therein 
were  directed,  and  the  periods  for  bringing  writs  of  error  fixed 
and  determined.  Writs  in  civil  and  criminal  matters,  but  in  capi- 
tal cases  the  writs  were  by  grace.  In  all  cases  the  chancellor 
issued  the  writ,  but  in  capital  cases  the  writ  was  only  issued  on 
motion,  or  petition  with  notice  to  the  public  prosecutor.  In  Feb- 
ruary, 1786,  the  court  adopted  the  following  seal :  On  a  field 


6.    Colonial  Laws  of  New  York,  vol.  II,  p.  230. 

344 


HISTORY  OF  NEW  YORK 

argent  in  the  middle  cliief  a  sun  in  its  meridian :  below  the  sun  a 
scroll  bearing  the  words,  ''New  York";  around  the  field  the  in- 
scription "Court  for  Trial  of  Impeachments  and  Correction  of 
Errors."  As  thus  constituted,  the  court  remained  until  1846,  a 
period  of  nearly  seventy  years. 

Prior  to  the  revolution,  justices  of  the  peace  existed  and 
were  continued  by  various  statutes  passed  at  different  times.  They 
were  the  courts  nearest  the  people.  In  the  Assembly  Act  of  1691 
establishing  courts  of  judicature,  there  was  provision  for  justices 
of  the  peace  who,  residing  in  any  town  or  county  of  the  province, 
should  have  cognizance  of  all  causes,  cases  of  debt  or  trespass  to 
the  value  of  forty  shillings  or  under,  the  trial  and  determination 
to  be  by  the  justices  without  a  jury;  but  "with  the  assistance  of 
one  of  ye  freeholders  of  the  towne  or  place  where  the  cause  of 
action  arose."  The  process  of  warning  was  by  a  summons  under 
the  hand  of  the  justice,  directed  to  the  constable  of  the  town  or 
precinct  or  his  deputy,  the  summons  to  be  personally  served  at 
the  defendant's  house  two  days  before  the  day  of  hearing,  and  to 
be  sufficient  authority  for  the  justice  to  proceed  and  determine 
the  cause  in  the  defendant's  absence,  and  to  grant  execution 
against  the  defendant's  person  or  his  estate.  The  plantift'  or  de- 
fendant could  have  a  jury  trial  "at  the  proper  cost  and  charges 
of  the  person  desiring  ye  same."'' 

Chapter  forty- four,  of  the  third  legislative  session,  passed 
February  26,  1780,  empowered  justices  of  the  peace,  mayors, 
recorders  and  aldermen,  to  try  cases  to  the  value  of  one  hundred 
pounds  and  under.  The  enactment  provided  that  all  causes, 
actions,  and  cases  of  debt,  slander,  trespass,  replevin,  or  for 
damages,  where  the  amount  demanded  did  not  exceed  the  sum  of 
£100,  should  be  heard  before  one  of  the  justices  of  the  peace  of 


7.    "Colonial  Laws  of  New  York,"  vol.  I,  p.  226. 

345 


LEGAL  AND  JUDICIAL 

any  of  the  counties,  or  the  mayor  or  recorder  or  aldermen  of  the 
cities  of  New  York  and  Albany  and  the  borough  of  Westchester 
respectively.  The  defendant  was  required  to  appear  forthwith, 
when  the  process  was  by  warrant,  and  when  by  summons  not  less 
than  six  days  or  more  than  twelve  days  were  allowed  for  his 
appearance.  The  judgment  was  to  be  given  within  four  days 
after  the  trial.  If  the  magistrate  who  issued  the  warrant  was 
absent,  the  defendant  could  be  carried  before  any  other  magis- 
trate of  the  same  city,  town,  borough,  manor,  precinct,  or  district. 

Process  against  all  freeholders  and  against  all  inhabitants 
having  families  was  by  summons  only,  and  was  served  on  the 
person  of  the  defendant,  or  a  copy  was  left  at  his  or  her  house 
or  place  of  abode,  in  the  presence  of  some  member  of  the  family 
of  suitable  age  and  discretion  (who  should  be  informed  of  the 
contents  thereof),  at  least  six  days  before  the  time  for  appear- 
ance mentioned  in  the  summons.  The  constable  or  officer  who 
served  the  summons  was  required  to  endorse  upon  it  the  manner 
in  which  he  executed  it.  On  non-appearance  without  sufficient 
reason  assigned,  the  court  proceeded  to  trial  if  the  defendant  had 
been  personally  summoned;  if  the  summons  was  left  at  his  house, 
a  warrant  issued  in  case  of  non-appearance. 

If  the  parties  agreed  to  it,  the  case  could  be  tried  without 
appearance.  On  an  affidavit  showing  that  the  plaintiff  was  in 
danger  of  losing  his  demand  if  a  summons  issued,  a  warrant 
issued,  even  though  the  party  was  a  freeholder.  If  the  defendant 
gave  security  the  court  might  adjourn  the  trial.  A  non-resident 
plaintiff  of  the  district,  upon  giving  security,  might  have  a  war- 
rant returnable  immediately.  Either  party  could  demand. a  jury 
of  six  freeholders  or  freemen  to  try  the  case.  The  juror's  oath 
was  in  the  following  form:  "You  shall  well  and  truly  try  this 
matter  in  difference  between  A.  B.,  plaintiff,  and  C.  D.,  defendant, 

346 


HISTORY  OF  NEIF  YORK 

and  a  true  verdict  give  according  to  the  evidence,  so  help  you 
God."  The  witnesses's  oath  was  as  follows :  "The  evidence  which 
you  shall  give  in  this  matter  in  difference  between  A.  B.,  plaintiff, 
and  C.  D.,  defendant,  shall  be  the  truth,  the  whole  truth,  and 
nothing  but  the  truth,  so  help  you  God." 

After  hearing  tlie  proofs  and  allegations,  the  jury  was  kept 
together  in  some  convenient  place  until  it  had  agreed  upon  a 
verdict.  When  the  jurymen  had  all  agreed,  they  delivered  their 
verdict  into  court,  and  thereupon  judgment  was  given.  No  oath 
of  the  parties  or  ex  parte  affidavit  was  admitted  in  evidence 
unless  the  parties  consented  thereto.  Every  person  summoned 
and  drawn  as  a  juror  or  subpoenaed  as  a  witness,  who  did  not 
appear,  or  who  appearing,  refused  to  serve,  or  give  any  evidence 
in  such  action,  forfeited  such  fine  or  fines,  not  exceeding  the  sum 
of  forty  pounds  nor  less  than  ten  pounds,  in  the  discretion  of  the 
court.  These  fines  were  applied  to  the  use  of  the  poor  of  the 
place  they  were  levied. 

If,  in  any  such  action,  the  plaintiff  was  non-suited  or  dis- 
continued, or  withdrew  his  action  without  the  consent  of  the  de- 
fendant, judgment  was  given  against  him  for  the  costs  accrued, 
and,  if  he  appeared  to  be  indebted  to  the  defendant,  judgment  was 
given  against  him  for  the  amount  of  his  debt  or  demand  and  costs. 
Execution  in  case  of  judgment  issued  to  the  constable  to  levy  on 
the  debtor's  goods,  and  for  want  thereof  to  take  the  debtor's 
body.  No  execution  could  issvie  against  a  freeholder  in  less  than 
thirty  days  after  judgment,  unless  on  proof  of  danger  of  losing 
the  debt.  It  was  also  provided  that  if  any  plaintiff  should  com- 
mence or  prosecute  any  of  the  actions  mentioned  in  the  act,  in  any 
other  manner  than  as  directed  in  the  act,  and  should  obtain  a 
judgment  thereon,  which  without  costs  should  not  amount  to 
more  than  £ioo,  not  having  caused  an  oath  or  affirmation  to  be 

347 


LEGAL  AND  JUDICIAL 

made  before  obtaining  tlie  writ  and  filing  the  same  in  the  clerk's 
office,  that  the  person  making  the  oath  or  affirmation  did  truly 
believe  the  debt  due  or  damages  sustained  exceeded  £ioo,  should 
not  recover  any  costs  in  such  action.  This  provision  did  not  ex- 
tend to  suits  in  the  name  of  the  people,  or  where  titles  to  land 
came  in  question,  or  actions  for  slander.  It  also  provided  that  the 
act  should  extend  to  the  matter  of  account  where  the  total  sum  of 
the  amount  exceeded  the  sum  of  £400. 

The  act  also  provided  that  no  justice  of  the  peace,  being  a 
tavern  keeper,  should  try  any  action  in  his  own  house.  In  actions 
of  trespass  on  plea  of  title,  the  defendant  was  required  to  enter 
into  recognizance,  and  to  prosecute  and  make  good  his  title  in 
manner  as  directed  by  a  law  of  the  colony  of  New  York  entitled 
"An  Act  for  preventing  trespass,  passed  May  6th,  1699;"  oth- 
erwise the  magistrate  was  directed  to  hear  and  determine  the 
cause  as  if  no  such  plea  had  been  made. 

The  cost  for  a  summons  was  sixteen  shillings ;  a  warrant, 
twenty  shillings;  a  judgment,  twenty  shillings;  administering 
every  oath  affirmation,  ten  shillings;  execution,  thirty  shillings; 
subpoena  for  each  witness,  ten  shillings ;  venire  facias  to  sum- 
mon a  jury,  twenty  shillings;  swearing  a  jury,  thirty  shillings; 
witness  attending  on  summons  or  otherwise,  forty  shillings  per 
day,  and  so  in  proportion  for  a  longer  time ;  constables  or  other 
proper  officers  for  serving  summons,  subpoena,  or  other  execu- 
tion for  each  mile  travelled  or  under,  twenty  shillings,  and  for 
every  extra  mile,  ten  shillings ;  serving  every  execution  for  every 
pound,  one  shilling;  and  summoning  every  jury,  sixty  shillings. 
Jurors  received  twenty  shillings  per  man  for  each  case  tried,  and 
when  attending  and  not  serving  ten  shillings  per  man.  There  was 
a  provision  in  the  act  that  in  any  case  the  costs  should  not  exceed 
the  sum  of  £40. 

348 


HISTORY  OF  NEfF  YORK 

No  certiorari  or  writ  of  error  could  be  issued  unless  an  affi- 
davit showing  reasonable  cause  was  presented  to  the  justice  within 
one  month  after  judgment.  A  copy  of  such  affidavit  was  given 
to  the  adverse  party  when  required.  Upon  the  affirmance  or 
reversal  of  the  judgment  the  prevailing  party  was  awarded  costs. 
The  supreme  court  was  directed  to  order  the  attorney-general 
to  prosecute  magistrates  guilty  of  unjust  practices.  This  act  was 
to  remain  in  force  until  March,  1781. 

Chapter  nine,  of  the  laws  of  1780,  which  was  passed  at  the 
fourth  session  of  the  legislature,  reduced  the  jurisdiction  of  the 
justices  of  the  peace  and  the  other  officers  mentioned  in  chapter 
forty- four,  to  the  cognizance  of  cases  to  the  value  of  £10  only. 
The  fees  were  reduced  to  one-twelfth  part  of  their  nominal  value 
as  expressed  in  said  act,  and  it  was  further  ordained  that  upon 
all  executions  to  be  issued  in  consequence  of  judgments  in  any 
court,  in  pursuance  of  said  act  after  the  passage  thereof,  money 
should  be  received  at  the  following  and  no  other  rates :  Silver 
at  the  rate  of  eight  shillings  for  a  Spanish  milled  dollar,  and  gold 
and  other  coins  in  the  like  proportion  at  the  rates  they  usually 
pass;  new  bills  emitted  upon  the  credit  of  the  state  pursuant  to 
the  act  of  congress  of  the  eighteenth  of  March  preceding,  at 
their  respective  nominal  value,  and  every  other  species  of  paper 
currency  emitted  by  the  authority  of  congress,  or  of  the  late  col- 
ony of  New  York,  or  the  state,  at  one-fortieth  part  of  the  nom- 
inal value  thereof,  or  at  the  rate  of  two  pence  and  two-fifths  of 
a  pence  for  each  dollar,  or  eight  shillings  expressed  on  the  face 
of  each  bill. 

The  jurisdiction  of  the  justices'  courts  at  the  present  time, 
1910,  has  been  concisely  stated  by  Judge  Adolph  T.  Rodenbeck, 
whose    manuscript*    has    been    drawn    upon    for    the    following 


8.    "History  of  the  Administration  of  Justice,"  by  A.  T.  Rodenbeck. 

349 


LEGAL  AND  JUDICIAL 

synopsis.  Where  the  sum  involved  does  not  exceed  $200,  the 
courts  have  civil  jurisdiction  in  actions  on  contract;  for  damages 
for  personal  injury  or  injury  to  property;  for  fine  or  penalty; 
on  bond  for  payment  of  money ;  and  to  recover  chattels,  with  or 
without  damages  for  taking,  withholding  or  detention ;  also  upon 
a  surety  bond,  taken  by  any  justice  of  the  peace ;  upon  a  judg- 
ment rendered  in  a  court  of  a  justice  of  the  peace,  or  in  a  dis- 
trict court  of  the  city  of  New  York,  or  in  a  justice  court  of  a 
city ;  being  a  court  not  of  record ;  to  recover  damages  for  an 
escape  from  the  jail  liberties,  where  the  sum  claimed  does  not 
exceed  $50;  to  render  judgment  upon  the  confession  of  a  defen- 
dant ;  detention  of  canal  boats  ;  removal  of  constables  ;  enforce- 
ments of  mechanics  liens ;  altering  roads ;  to  punish  for  criminal 
contempt ;  disorderly,  contemptuous  or  insolent  behavior ;  breach 
of  peace ;  resistance  of  execution  of  law  mandate ;  in  summary 
proceedings  to  dispossess  tenants  in  general;  over  the  person; 
order  of  arrest  in  civil  actions ;  over  property ;  attachment  • 
action  to  recover  a  chattel ;    animals  straying  in  highways. 

A  justice  of  the  peace  has  no  jurisdiction :  where  the  people 
of  the  state  are  a  party,  except  for  fines  and  penalties  not  exceed- 
ing $200;  where  the  title  to  real  property  comes  in  question; 
where  the  action  is  to  recover  damages  for  assault,  battery,  false 
imprisonment,  libel,  slander,  criminal  conversation,  seduction  or 
malicious  prosecution;  by  a  creditor  against  wife,  etc.,  of  a 
decedent ;  against  heirs  of  an  intestate,  etc.,  an  action  against  a 
child  born  after  the  making  of  a  will,  etc. ;  executor,  etc.,  tc^ 
recover  damages  for  death  of  decedent;  for  public  funds  illeg- 
ally obtained;  where  in  a  matter  of  account  the  total  of  the 
accounts  of  both  parties  exceed  $400 ;  where  the  action  is  against 
an  executor  or  administrator,  unless  for  less  than  $50,  and  the 
claim  has  been  presented  to  the  executor,  is  rejected. 

350 


HISTORY  OF  NEW  YORK 

In  a  matter  within  its  jurisdiction,  where  special  provision 
is  not  otherwise  made  by  law,  a  justice's  court  is  vested  with  all 
the  necessary  powers  possessed  by  the  Supreme  Court.  Any 
provision  of  the  code  of  civil  procedure  not  contained  in  sections 
2861-3158  made  applicable  to  proceedings  before  a  justice  of  the 
peace  is  subject  to  the  qualification  that  it  does  not  include  any- 
thing repugnant  to  any  special  provision  of  law  regulating  the 
jurisdiction  or  powers  of  a  justice  of  the  peace. 


It  is  not  known  that  the  Mayor's  Court  in  New  York  City 
was  held  from  June  27,  1774,  to  February  10,  1784,  for  the  public 
records  are  not  in  existence.  After  the  British  had  left  the  city, 
Governor  Clinton  appointed  James  Duane  as  Mayor,  and  Richard 
Varick  as  Recorder,  and  the  Mayor's  Court  and  the  Courts  of 
Session  were  reopened.  The  Mayor's  Court  was  convened  Feb- 
ruary 10,  1784,  and  Duane,  after  promulgating  rules  to  regulate 
procedure  therein,  adjourned  for  three  weeks.  Upon  the  adjourned 
day,  February  24,  Recorder  Varick  took  his  seat  beside  the 
mayor  and  regular  business  was  resumed.  On  that  day  one  hun- 
dred and  sixteen  writs  were  issued;  on  the  next  adjourned  day 
there  were  one  hundred  and  sixty-seven  new  writs,  and  at  the  ses- 
sion in  July  there  were  one  hundred  and  ninety-eight.  It  has  been 
remarked  that  "The  concentration  at  once  of  this  large  amount  of 
business  in  the  court,  which  was  quadruple  that  of  the  Supreme 
Court,  and  embraced  actions  of  all  kinds  and  descriptions,  was 
owing  to  the  great  confidence  felt  in  the  legal  ability  of  Duane  and 
the  facility  afforded  by  the  frequent  sessions  of  the  court  for  the 
speedy  dispatch  of  business. 

"The  high  character  of  Duane  drew  ii.to  the  court  every  lawyer  of 
ability;  and  for  more  than  a  quarter  of  a  century  afterwards,  it  became, 


LEGAL  AND  JUDICIAL 

in  view  of  the  men  who  presided  in  it,  and  those  who  practiced  before  it, 
not  only  the  leading  court  in  the  city,  but  one  of  the  most  eminent  judicial 
tribunals  in  the  State.  During  the  mayoralty  of  Duane  and  Varick,  and 
while  Samuel  Jones,  James  Kent  and  Richard  Harrison  were  successively 
recorders — that  is  until  the  year  1805, — the  leading  practitioners  in  the 
court  were  Alexander  Hamilton,  Aaron  Burr,  Robert  Troup,  Edward  Liv- 
ingston, Brockholst  Livingston,  Egbert  Benson,  Morgan  Lewis  and  Josiah 
Ogden  Hoffman,  all  of  them  at  the  commencement  of  this  period  young 
men  whose  forensic  efforts  were  made  in  the  mayor's  court."* 

One  of  the  first  cases  that  was  brought  before  this  court  for 
argument  and  decision  was  of  extraordinary  character  and  import- 
ance, in  the  issue  involved,  in  the  absorbing  public  interest  which 
was  taken  in  it,  and  in  the  character  of  the  lawyers  who  argued 
it.  The  case  was  that  of  Rutgers  vs.  Waddington,  and  in  its  pre- 
sentation and  final  adjudication  the  question  of  State  Rights  was 
brought  to  the  front  for  the  first  time  in  the  history  of  the  United 
States.  Otherwise  the  case  was  notable.  It  was  the  first  import- 
ant appearance  of  Alexander  Hamilton  as  an  attorney,  and  his 
argument  was  the  first  presentation  of  those  political  principles 
with  which,  in  subsequent  years,  he  became  conspicuously  iden- 
tified. Views  presented  by  him  in  this  instance  he  elaborated  in 
the  National  Convention  of  1787;  and  ultimately  they  were 
embodied  in  the  Constitution  of  the  United  States. 

An  action  had  been  brought  to  recover  six  years'  rent  of  an 
ale  house  which  belonged  to  the  plaintiff  Rutgers,  in  the  city  of 
New  York,  and  which  had  been  occupied  by  the  defendant  Wad- 
dington during  the  possession  of  the  city  by  the  British.  This 
occupation  had  been  first  under  license  from  the  general  who  was 
in  command  in  New  York  City  in  1778,  and  afterwards  under 
authority  from  Sir  Henry  Clinton,  the  British  general.  On  the 
part  of  the  plaintiff  it  was  held  that  one  belligerent  might  begin 


9.     "Historical   Sketch  of  the  Judicial  Tribunals  of   New  York",  by 
Charles  P.  Daly,  p.  59. 


HISTORY  OF  NEW  YORK 

an  action  against  another  after  articles  of  peace  had  been  agreed 
upon,  to  recover  damages  for  loss  of  or  injury  to  property  during 
the  war.  In  support  of  this  contention,  an  act  of  the  State  legis- 
lature of  1783  was  relied  upon.  This  act  conferred  right  of 
action,  and  prohibited  the  defendant  from  setting  up  as  defense 
that  the  property  involved  had  been  occupied,  injured,  or  de- 
stroyed by  military  command.  It  was,  however,  contrary  to  na- 
tional precedence,  and  had  never  before  been  judicially  ruled 
upon.  Its  passage  by  the  legislature  was  due  to  the  influence  of, 
and  reflected  clearly,  the  intense  patriotic  sentiments  of  the  period, 
and  the  general  hatred  which  was  felt  for  the  Tories.  Great 
property  interests  were  also  involved,  and  on  the  outcome  of  the 
trial  depended  much  of  the  final  adjustment  of  property  owner- 
ships concerning  which  conflicting  opinions  existed,  the  out- 
growth of  divergent  political  views  which  had  prevailed  among 
the  people  during  the  years  of  the  revolution,  and  immediately 
preceding. 

Mayor  Duane  presided  over  the  court.  Robert  Troop  and 
William  Lawrence  appeared  for  the  plaintiff,  and  Egbert  Benson, 
who  was  then  the  State  attorney  general,  volunteered  his  services 
on  the  same  side.  For  the  defendant,  Alexander  Hamilton  was 
the  principal  counsel,  and  associated  with  him  were  William  S. 
Livingston  and  Morgan  Lewis.  Benson  and  Hamilton  were  the 
leaders  on  the  opposing  side,  the  other  counsel  being  less  con- 
spicuous, although  active  in  arguing  the  various  points. 

In  support  of  the  case  of  the  plaintiff,  main  reliance  was 
placed  by  the  counsel  upon  the  statute  which  has  just  been  re- 
ferred to,  and  upon  the  argument  that  the  State  had  sovereign 
capacity  to  pass  any  acts  which  might  seem  to  its  representatives 
to  be  wise  and  justifiable.  In  amplification  of  this  view,  it  was 
argued  that  each  State  was  an  independent  sovereignty ;  that  the 

353 

23 


LEGAL  AND  JUDICIAL 

power  to  pass  laws  rested  in  it ;  that  it  might  enact  a  law  affecting 
the  property  or  person  of  any  one  within  its  jurisdiction;  and  that 
the  sovereignty  of  the  people  in  each  and  every  State  was  abso- 
lute, and  beyond  the  control  even  of  the  Continental  Congress. 
It  was  further  argued  that  the  mayor's  court,  as  a  State  tribunal, 
could  not  disregard  the  laws  of  the  State,  even  though  such  laws 
might  be  in  conflict  with  what  had  been  agreed  to  by  the  national 
congress. 

Hamilton's  contention  was  that,  by  the  Constitution  of  1777, 
international  law  had  become  a  part  of  the  common  law,  and 
thus  an  integral  part  of  the  law  of  the  State,  and  that,  therefore, 
any  act  passed  by  the  legislature  which  violated  the  terms  of 
international  law  must  be  null  and  void.  He  further  argued  that 
under  the  terms  of  the  treaty  of  peace  between  the  United  States 
iind  Great  Britain  the  defendant  was  fully  protected  in  his  rights. 
The  Continental  Congress,  one  of  the  parties  to  that  treaty,  had 
no  right  to  deprive  him  of  any  privileges  to  which  he  was  thus 
entitled,  and  consequently  the  State  had  no  such  right.  Regard- 
ing the  point  that  each  State  was  independent  of  the  central 
authority  of  the  Continental  Congress,  he  advanced  the  view  that 
the  States  were  not  simply  an  aggregation  of  independent  com- 
munities, but  that,  under  the  Articles  of  Confederation,  they  were 
a  Union  for  a  common  end  and  purpose,  with  certain  of  their 
powers  vested  in  a  general  and  national  Congress.  He  analyzed 
in  detail  the  nature  of  the  Union  established  by  the  Thirteen 
Colonies,  and  came  to  the  conclusion  that  the  States,  in  their  con- 
federate capacity,  had  delegated  the  power  of  entering  into 
treaties  exclusively  to  the  Continental  Congress;  that,  therefore, 
the  making  of  a  treaty  by  the  Congress  bound  each  State,  and 
that  no  State  had  the  right  to  pass  any  laws  violating  such  a  treaty 
or  repudiating  any  of  its  provisions.     He  also  claimed  that  the 

354 


HISTORY  OF  N  EfV  YORK 

State  of  New  York  was  a  party  to  the  Declaration  of  Independ- 
ence and  to  the  Articles  of  Confederation,  and  that,  therefore, 
having  entered  into  a  contract  for  the  purpose  expressed  in  the 
Declaration  and  in  the  Articles,  it  could  not  withdraw  or  be  re- 
leased from  its  obligations  without  the  consent  of  the  other 
parties  to  the  contract.  In  all  essentials  this  was  the  argument 
against  State  Rights  which  was  destined  to  vex  the  country  for 
nearly  a  century  a'fter  that  time.  It  was  the  foundation  for  Ham- 
ilton's political  principles  in  after  years,  and  upon  it  were  based 
the  propositions  which  statesmen  of  later  generations  presented 
in  the  great  internal  controversies  in  which  the  United  States  be- 
came involved. 

Mayor  Duane's  decision  was  of  not  less  importance  than  the 
argument  of  Hamilton.  He  held  that  the  defendant  was  liable 
for  the  rent  of  the  premises  for  the  first  three  years  of  his  occu- 
pancy, from  1777  to  1780,  for  the  reason  that  their  use  during 
that  period  could  not  be  regarded  as  having  any  relation  to  the 
war,  and  that  the  commissary  general  had  no  authority  to  grant 
possession  of  the  property  at  that  time.  He  held  that  for  the 
other  three  years,  from  1780  to  1783,  the  defendant  was  not 
liable.  Upon  this  point  he  agreed  with  Hamilton,  taking  the 
ground  that  international  law  governed  during  this  period,  and 
that,  by  the  Constitution  of  the  State,  that  law  had  become  the 
law  of  the  State.  Bound  by  the  articles  of  the  confederacy  into 
which  they  had  involuntarily  entered,  no  one  of  the  separate 
States  could  act  in  conflict  with  those  articles,  and  the  rights  of 
the  States  could  not  prevail  above  the  national  rights. 

Naturally,  in  the  frame  of  mind  in  which  the  public  was  at 
that  time,  this  decision  created  an  intense  feeHng  of  popular  in- 
dignation. It  was  regarded  as  decidedly  unpatriotic,  and  public 
meetings  were  held  to  denounce  it  as  a  violation  of  the  privileges 

355 


LEGAL  AND  JUDICIAL 

of  the  people  and  an  act  of  judicial  tyranny.  An  appeal  was 
made  to  the  council  of  appointment  to  remove  Mayor  Duane 
and  Recorder  Varick,  and  to  put  in  their  places  judges  who  would 
recognize  the  law  of  the  State.  An  appeal  to  the  court  of  errors 
was  threatened,  but  the  defendant  compromised  the  claim,  and 
thus  the  appeal  was  not  taken.  Subsequently,  upon  the  motion  of 
Hamilton,  the  legislature  of  the  State,  in  1787,  repealed  the  statute 
of  1783  upon  which  the  plaintiflF's  case  was  based,  and  passed 
an  act  covering  this  matter,  based  upon  the  principles  which 
Hamilton  had  advanced  and  Duane  had  Decreed. 

Duane  continued  to  preside  in  the  court  until,  in  1789,  he 
was  appointed  by  Washington,  after  the  organization  of  the 
United  States  courts,  to  be  district  judge  of  New  York.  Richard 
Varick  succeeded  him  as  mayor,  and  in  the  thirty-five  years  that 
followed,  the  mayors  and  recorders  who  sat  in  this  court  and  in 
the  court  of  sessions  were  among  the  most  eminent  men  in  the 
State,  all  of  them,  with  one  exception,  being  distinguished  law- 
yers. The  mayors  were  Edward  Livingston,  DeWitt  Clinton, 
Marinus  Willett,  Jacob  RadcliflFe  and  Cadwalader  Colden.  The 
recorders  were  Samuel  Jones,  James  Kent,  Richard  Harrison, 
John  B.  Prevoost,  Maturin  Livingston,  Pierre  C.  Van  Wyck, 
Josiah  Ogden  Hoffman,  Jacob  Radcliffe,  Peter  A.  Jay  and  Rich- 
ard Ricker. 

During  the  mayoralty  of  DeWitt  Clinton,  he  ceased  to  pre- 
side in  the  mayor's  court,  and  from  that  time  until  1821  the 
recorder  sat  as  presiding  judge  in  that  court,  and  the  mayor  as 
presiding  judge  of  the  court  of  sessions.  In  1821  an  act  was 
passed  changing  the  name  of  the  court  to  the  court  of  common 
pleas  for  the  city  and  county  of  New  York,  and  creating  a  per- 
manent judgeship.  Modified  in  some  respects  by  the  Constitution 
of  1823,  this  law  went  into  effect,  and  John  T.  Irving  was  ap- 

356 


CADWALLADER  D.  COLDEN. 

(1769- 1834). 

Lawyer ;    Member   of   Assembly ;    Mayor   of   New   York ; 
Member  of  Congress;   State  Senator. 


.  >ho 


;  ^dfo 


IlIOXCAB"^''Al,LA\TnT,1-;    l')    T^TDI.TDTRTT   l-.^D"- 


i 


HISTORY  OF  N EfV  YORK 

pointed  the  first  judge.  Mayor  Stephen  Allen  ceased  to  preside 
in  the  court  of  sessions,  and  Recorder  Richard  Riker,  who  had 
sat  for  some  years  in  the  mayor's  court,  succeeded  to  the  head  of 
the  court  of  sessions.  For  seventeen  years,  until  his  death. 
Judge  Irving  presided  in  the  new  court.  During  this  time  the 
leading  practitioners  before  him  were  John  Anthon,  Martin  S. 
VVilkins,  Elisha  W.  King,  John  T.  Mulligan,  Robert  Bogardus, 
Pierre  C.  Van  Wyck,  Thomas  Phoenix,  Joseph  D.  Fay,  David 
Graham,  Hugh  Maxwell,  John  Leveridge  and  WilHam  M.  Price; 
and  now  and  then,  in  important  cases,  appeared  such  distinguished 
members  of  the  senior  bar  as  Thomas  Addis  Emmet,  Peter  A. 
Jay,  Peter  W.  Radcliffe,  Samuel  M.  Hopkins,  David  B.  Ogden, 
William  Slosson,  William  Samson  and  others. 

In  1834  an  associate  judge  of  the  court  of  common  pleas 
was  created,  and  Michael  Ulshoeffer  was  the  first  incumbent  of 
the  office.  Upon  the  death  of  Judge  Irving,  in  1838,  Ulshoeffer 
became  first  judge,  and  Daniel  P.  Ingraham  associate  judge. 
In  1839  an  additional  associate  judge  was  provided,  and  William 
Inglis  was  appointed.  In  1844  Charles  P.  Daly  was  appointed 
in  place  of  Judge  Inglis,  and,  as  then  constituted,  the  court  con- 
tinued for  three  years,  until  after  the  adoption  of  the  Constitu- 
tion of  1847. 

When  the  Revolution  broke  out,  confused  ideas  prevailed  as 
to  the  nature  and  jurisdiction  of  the  court  of  probate,  and  even 
as  to  its  name.  Sometimes  it  was  called  the  prerogative  court, 
and  sometimes  the  court  of  probate,  and  this  confusion  of  names 
has  led  to  the  impression  that  there  were  two  tribunals  before 
the  revolution.  Supposing  the  authority  of  this  court  to  be 
greater  than  it  actually  was,  the  legislature,  in  1778,  intended  to 

357 


LEGAL  AND  JUDICIAL 

sweep  away  every  authority  vested  in  it,  and  proposed  to  consti- 
tute a  court  thereafter  to  be  held  by  a  single  judge,  having  the 
same  jurisdiction  in  testamentary  matters  and  in  cases  of  intest- 
acy, and  to  be  known  as  the  court  of  probate.  Accordingly,  in 
an  act  passed  in  that  year,  it  was  declared  that  the  judge  of  the 
court  of  probate  should  be  vested  with  the  powers  and  author- 
ity, and  have  the  like  jurisdiction  in  testamentary  matters,  which 
the  governor  of  the  Colony  of  New  York,  while  it  was  subject 
to  the  crown  of  Great  Britain,  had  and  exercised  as  judge  of 
the  prerogative  court,  or  the  court  of  probate  of  the  colony, 
except  the  power  of  appointing  surrogates.^"  The  court  held 
sittings  at  regular  periods,  in  different  parts  of  the  State,  until 
1783,  when  it  was  located  in  the  city  of  New  York.  Then,  in 
1797,  it  was  permanently  removed  to  Albany,  the  judge  and  the 
clerk  being  directed  to  transfer  all  papers  and  documents  to  that 
city,  and  in  the  future  to  reside  there. 

Up  to  1797,  the  surrogates  of  the  different  counties  continued 
to  exercise  exactly  the  same  powers  which  they  had  before  the 
Revolution.  In  that  year  an  act  was  passed,  by  which  the  grant- 
ing of  probate  and  of  letters  of  administration  was  taken  away 
altogether  from  the  court  of  probate,  except  in  certain  speci- 
fied cases,  and  conferred  upon  the  surrogates  of  the  different 
counties,  from  whose  decision  in  contested  cases  an  appeal  was 
allowed  to  the  court  of  probate.  This  act  provided  that  the 
governor,  with  the  consent  of  the  council  of  appointment,  should 
commission  a  surrogate  for  every  county  in  the  State,  and  em- 
power each  surrogate  to  take  proof  of  the  last  wills  and  testa- 
ments of  persons  dying  in  his  county,  or  of  one  who  was  an  in- 
habitant of  it  if  he  died  from  home,  to  issue  probate  and  grant 


10.     "History  of  the   Administration  of   Justice,"    (MSS.)    by    A.   J. 
Rodenbeck. 


1 


R.  H.  Walworth 


^.s. 


REUBEN  H.  WALWORTH. 

(1789-1867). 

Jurist ;   Member  of  Congress,  1821-23 ;  Circuit  Judge,  1823- 
28;    Chancellor,   1828-48. 


^ 


HISTORY  OF  NEfV  YORK 

letters-testamentary  thereon,  or  letters  of  administration  with  the 
will  annexed ;  or  where  such  person  died  intestate  to  grant  letters 
of  administration,  such  letters  to  issue  in  the  name  of  the  people, 
and  to  be  tested  in  the  name  of  the  surrogate,  and  sealed  with 
the  seal  of  his  office.  The  act  further  provided  that  each  surro- 
gate should  record  all  wills  proved  before  him,  with  the  proof 
thereof,  and  all  letters  testamentary  or  of  administration  issued 
by  him,  with  all  things  concerning  the  same,  and  directed  that 
when  administration  was  granted  by  him,  that  the  inventory 
should  be  "exhibited  in  his  office." 

In  1786.  the  court  of  probate,  where  the  personal  estate 
was  insufficient  to  pay  debts,  was  empowered  to  order  the  sale 
of  real  estate  and  make  distribution  of  the  proceeds  among  the 
creditors.  When  the  court  was  removed  permanently  to  Albany 
in  1797,  it  was  found  very  inconvenient  to  resort  thither  in  all 
cases  for  that  purpose.  Accordingly,  in  1799,  an  act  was  passed 
conferring  this  power  upon  the  surrogates  when  the  lands  of  the 
deceased  were  exclusively  in  one  county ;  and,  by  the  same  act, 
the  surrogates  were  authorized  to  admit  wills  to  probate  or  to 
grant  letters  of  administration  where  persons  died  out  of  the 
state,  or  within  it  who  were  not  inhabitants. 

In  1801  the  surrogates  were  clothed  with  the  same  power 
as  the  judge  of  probate,  to  cite  the  administrators  to  account,  to 
decree  distribution,  or  the  payment  of  bequests  and  legacies,  and 
compel  it  by  execution.  In  1802  they  were  authorized  to  appoint 
guardians  for  infants  as  fully  as  the  chancellor  might  do;  in 
1806  to  order  the  admeasurement  of  dower  of  lands  within  their 
county  upon  the  application  of  the  widow,  the  heirs,  or  the  guar- 
dians of  minors ;  in  1807,  to  exercise  powers  as  extensive  as  the 
court  of  probate  in  ordering  sale  of  lands  for  the  payment  of 
debts,  and  in  1810  to  order  the  mortgaging  or  leasing  of  the  land 

359 


LEGAL  AND  JUDICIAL 

of  testators  or  intestators  for  the  payment  of  debts,  where  any 
infant  was  interested.  All  these  laws,  whether  relating  to  the 
surrogates  or  to  the  courts  of  probate,  were  incorporated  in  one 
general  act  in  the  Revision  of  1813,  in  which  act  are  also  embraced 
some  other  general  powers,  such  as  compelling  the  production  of 
wills,  documents,  or  writings,  the  attendance  of  witnesses,  and 
the  power  of  punishing  for  contempt  and  by  an  act  passed  in 
the  same  year,  they  were  authorized  to  complete  the  unfinished 
business  that  might  be  left  by  their  predecessors. 

In  1819  they  were  empowered  to  confirm  sales  of  real  estate 
ordered  by  them  for  the  payment  of  debts,  and  to  direct  convey- 
ances to  be  made  by  executors  or  administrators,  and  in  182 1,  to 
institute  an  inquiry  respecting  the  personal  estate  of  intestates  not 
delivered  to  the  public  administrator  nor  accounted  for  in  a  law- 
ful and  satisfactory  manner  by  the  person  in  whose  hands  it 
was  supposed  to  have  fallen.  By  the  act  passed  in  1823,  the 
court  of  probate  was  abolished.  Its  appellate  jurisdiction  on 
appeal  from  surrogates  was  transferred  to  the  court  of  chancery, 
and  whatever  other  jurisdiction  it  possessed  was  by  this  act 
vested  in  that  court.  Its  records  were  placed  with  the  clerk  of  the 
court  of  appeals. 

From  1823  to  the  passage  of  the  Revised  Statutes,  the  only 
acts  of  a  general  character  relating  to  surrogates  were  acts  direct- 
ing them  to  record  all  letters  testamentary  and  of  administration, 
all  appointments  of  guardians,  and  all  orders  and  decrees  upon 
sales  of  real  estate  made  by  themselves  or  their  predecessors.  In 
that  revision  the  jurisdiction  of  the  surrogate's  court  was  con- 
siderably enlarged,  but  nothing  was  taken  away.  In  1846  the 
office  of  surrogate  was  abolished  in  all  counties  except  those  which 
had  a  population  above  40,000,  and  the  duties  which  they  had 
exercised  were  imposed  upon  the  county  judges.    The  legislature 

360 


HISTORY  OF  NEW  YORK 

had  power  to  authorize  the  election  of  surrogates  for  a  term  of 
six  years  in  those  counties  which  then  had  a  population  in  excess 
of  40,000.  The  surrogates  thus  elected  could  take  acknowledg- 
ment of  deeds  and  administer  oaths  as  county  judges. 

The  judges  of  the  court  of  probate  from  1778  to  the  abol- 
ishment of  the  court  in  1823,  were,  with  the  dates  of  their  ap- 
pointment:  Thomas  Tredwell,  March  13,  1778;  Peter  Ogitire, 
April  16,  1787;  Leonard  Gansvoort,  April  5,  1799;  John  Chap- 
lin, February  11,  181 1 ;  T.  Van  Wyck  Graham,  March  16,  1813; 
Gerrit  Y.  Lansing,  July  8,  1816. 

After  the  supreme  court  had  been  reconstituted  by  the  Con- 
stitutional Convention  of  1777,  the  council  of  revision  and  appoint- 
ment created  by  that  convention  directed  that  the  new  court  should 
meet  in  Kingston,  then  the  temporary  capitol  of  the  state,  on 
account  of  New  York  City  being  occupied  by  the  British.  On 
September  9,  1777,  the  court  began  its  first  session.  Indicative  of 
the  changed  condition  of  aflFairs  in  the  colony,  the  first  cause  on 
the  docket  was  in  the  name  of  "The  People  of  the  State  of  New 
York",  and  not  as  before,  "Dominus  Rex."  The  first  charge  to 
any  grand  jury  in  the  new  State  was  delivered  by  Chief  Justice 
Jay  to  the  grand  inquest  of  the  county  of  Ulster,  consisting  of 
twenty-two  citizens.  In  his  address,  which  was  eloquent,  and 
redolent  of  the  patriotism  which  imbued  the  minds  of  the  peo- 
ple of  that  period,  the  chief  justice  dwelt  particularly  upon  the 
public  situation,  and  placed  emphasis  upon  the  fact  that  "the 
Americans  were  the  first  people  whom  Heaven  had  favored  with 
an  opportunity  of  deliberating  upon  and  choosing  the  forms  of 
government  under  which  they  should  henceforth  live."     Eman- 

361 


I 


LEGAL  AND  JUDICIAL 

cipation  from  the  authority  of  England  was  thus  complete  so  far 
as  legal  declaration  could  make  it. 

Chief  Justice  John  Jay,  who  was  the  leading  figure,  enjoyed 
the  peculiar  distinction  of  being  the  first  chief  justice  of  the  State 
of  New  York,  and  also  the  first  chief  justice  of  the  United 
States.  He  was  also  one  of  the  notable  public  men  of  the  Revo- 
lutionary and  post-revolutionary  period,  eminent  as  a  statesman 
and  a  diplomat.  Born  in  New  York  City,  December  12,  1745, 
he  died  in  Bedford,  Westchester  county.  New  York,  May  17, 
1829.  Graduated  from  Kings  College  (in  contemporaneous  times 
Columbia  University),  in  1766,  he  was  immediately,  in  the  same 
year,  admitted  to  practice  at  the  bar,  when  he  was  but  twenty- 
one  years  of  age.  Within  ten  years  he  had  established  a  reputa- 
tion for  soundness  of  learning  and  ability  that  was  fully  justified 
by  his  after  career. 

No  citizen  of  New  York  was  more  conspicuous  or  more 
influential  in  the  public  affairs  which  preceded  the  revolution. 
In  all  the  patriotic  movements  of  that  time  he  was  active,  and  he 
was  the  author  of  many  of  the  resolutions  and  public  documents 
which  voiced  the  patriotic  sentiments  of  the  hour.  He  was  a 
delegate  and  always  a  leading  member  of  the  several  congresses 
which  were  held  in  Philadelphia,  and  in  the  deliberations  of 
those  bodies  he  was  looked  up  to  as  a  brilliant  speaker  and  sound 
adviser.  He  was  the  author  of  various  patriotic  addresses  to  the 
people  of  Great  Britain  and  of  Canada  and  Ireland,  and  was  one 
of  the  secret  committee,  appointed  by  Congress  in  November, 
1775.  "to  correspond  with  the  friends  of  America  in  Great 
Britain,  Ireland,  and  other  parts  of  the  world."  When  he  was  a 
member  of  Provincial  Convention  in  1776,  it  was  on  his  motion 
that  the  Declaration  of  Independence  was  unanimously  approved, 

362 


4 


John  Jay 


n 


TuristT  Statesman  and  Diplomat;  Member  of  Continental 
Congress;  Member  of  Constitutional  Convention  of  New  York, 
1777,  and  drafted  its  first  Constitution;  first  Chief  Justice  of 
Supreme  Court  of  New  York;  first  Chief  Justice  Supreme  Court 
of  United  States;  Minister  to  Spain;  Special  Envov  t"  (Moat 
Britain ;    Governor  of  New  York. 


HISTORY  OF  NEW  YORK 

and  he  was  the  chief  author  of  the  New  York  State  Constitution 
of  1777. 

At  the  saijie  time  that  he  was  chief  justice  of  the  State, — 
beginning  in  September,  1777, — he  was  a  member  of  the  council 
of  safety,  which  exercised  arbitrary  powers  in  the  military  occu- 
pation of  the  State.  He  did  not  long  remain  on  the  bench  of  the 
supreme  court,  for  he  was  soon  called  upon  to  serve  his  country 
in  a  broader  field.  Sent  to  Congress  in  1778,  he  was  chosen 
president  of  that  body,  holding  that  position  for  nearly  a  year, 
when,  in  September,  1779,  he  was  appointed  Minister  to  Spain. 
With  John  Adams  and  Benjamin  Franklin  he  was  a  commissioner 
on  the  part  of  the  United  States  in  negotiating  the  treaty  of  peace 
with  Great  Britain.  In  that  official  capacity  his  efforts  were  of 
the  greatest  value  in  securing  terms  of  settlement  most  advan- 
tageous to  his  country.  When  he  returned  to  the  United  States 
in  1784,  he  became  Secretary  of  Foreign  Affairs,  and  retained 
that  office  until  the  end  of  the  provincial  government. 

President  Washington  naturally  held  him  in  the  highest 
esteem,  and  when  the  national  government  was  organized,  the 
President  selected  him  to  be  the  first  chief  justice  of  the  supreme 
court.  As  chief  justice  of  the  United  States  he  made  a  reputa- 
tion which  established  him  high  in  the  esteem  of  his  contem- 
poraries, and  gave  him  a  fame  which  was  not  surpassed  by  any 
of  his  successors  upon  the  supreme  bench.  It  has  been  truly 
said  of  him  that  he  was  the  incarnation  of  honor  and  dignity;  as 
it  was  expressed  by  Daniel  Webster,  "when  the  spotless  ermine 
of  the  judicial  robe  fell  on  John  Jay  it  touched  nothing  less  spot- 
less than  itself."  Justice  Story,  of  the  supreme  court,  also  said 
of  him  that  he  was  "equally  distinguished  as  a  Revolutionary 
statesman  as  a  general  jurist."     There  can  be  no  doubt  of  his 

3^3 


LEGAL  AND  JUDICIAL 

greatness  as  a  judge,  and  many  of  his  opinions  and  decisions  be- 
came the  foundations  of  our  national  jurisprudence. 

Jay  did  not  long  remain  at  the  head  of  the  Supreme  Court, 
for  political  affairs  called  him  into  public  activity  again.  In  1792 
he  was  a  candidate  for  governor  of  New  York,  but  was  de- 
feated by  George  Clinton.  In  1794  Washington  sent  him  as  a 
special  envoy  to  England,  where  he  negotiated  the  celebrated 
treaty  which  bears  his  name.  During  his  absence  abroad  he  had 
been  chosen  to  be  governor  of  the  State  of  New  York,  and  he 
assumed  that  office  upon  his  return  to  the  United  States.  In  1798 
he  was  re-elected  to  the  governorship,  and  retired  therefrom  in 
1801.  President  John  Adams  desired  to  reappoint  him  to  be 
chief  justice  of  the  supreme  court,  but  he  declined  that  honor, 
and  permanently  retired  to  private  citizenship. 

The  first  rules  of  the  new  supreme  court  were  adopted  at 
the  April  term  in  1796.  They  were  drawn  by  puisne  Judge  Eg- 
bert Benson,  of  whom  Chancellor  Kent  said  that  he  did  more  to 
form  the  practice  of  the  court  than  any  other  before  or  after, 
while  Chief  Justice  Duer  said  of  him  that  as  a  master  of  special 
pleading  he  was  hardly  surpassed  by  Chief  Justice  Saunders 
himself. 

The  usual  preparation  for  admission  to  practice  before  the 
court  was  a  college  or  university  education  and  three  years'  ap- 
prenticeship, or,  without  the  educational  qualification,  seven  years' 
service  under  an  attorney.  In  any  case,  the  chief  justice  recom- 
mended the  candidate  to  the  governor,  who,  thereupon,  under  his 
hand  and  seal  at  arms,  granted  a  license  to  practice.  Upon  tak- 
ing the  usual  oath,  the  person  was  qualified  to  practice  in  every 
court  in  the  province.     Attorneys  were  admitted  into  the  county 

364 


'?^'''  ';-:v'-;::.    :■,>";-•"     ■'  '^-^^A/./i. 


DANIEL  D.  TOxMPKINS. 

'   (1774-1825). 

Statesman  and  Jurist ;  Justice  Supreme  Court,  1804-7 '-  Gov- 
ernor, 1807-17;   Vice  President,  1817-25. 


I 


LEG/fL  / 


Rt-kv- 


f 


Daniel  D.  Tompkins 


i 


HISTORY  OF  NEW  YORK 

courts  with  less  ceremony ;  for  the  governor  formally  licensed 
all  persons,  no  matter  how  indifferently  recommended.  As  a  nat- 
ural result,  the  profession  was  demeaned  by  the  admission  of  men 
who  were  not  only  of  slight  ability  but  also  of  indifferent  char- 
acter. The  Constitution  of  1777  provided  that  all  attorneys,  so- 
licitors, and  counsellors-at-law  should  be  appointed  by  the  court 
in  which  they  were  to  practice,  should  be  licensed  by  the  first 
judge  of  such  court,  and  should  be  regulated  by  its  rules  and  or- 
ders. Rules  of  the  court  relating  to  the  admission  of  attorneys 
and  counsellors-at-law  as  early  as  1797  provided  that  no  person 
should  be  admitted  to  practice  unless  he  should  have  served  a  reg- 
ular clerkship  of  seven  years  with  a  practicing  attorney  of  the 
court;  but  any  period  of  time,  not  exceeding  four  years,  during 
which  a  person  after  he  should  have  been  fourteen  years  of  age 
should  have  pursued  classical  studies,  should  be  accepted  in  lieu 
of  an  equal  portion  of  time  of  clerkship. 

These  rules  also  provided  for  filing  a  certificate  of  clerkship, 
and  that,  if  the  clerkship  should  be  intended  for  less  than  seven 
years  because  of  the  fact  that  the  person  has  pursued  classical 
studies,  an  application  should  be  first  made  to  a  judge,  who,  on 
examination  of  the  matter,  should  make  an  order  to  be  annexed 
to  the  certificate,  purporting  that  it  satisfactorily  appeared  to  him 
that  the  person  applying  had  pursued  classical  studies  after  he 
was  fourteen  years  of  age,  for  such  a  period  of  time  not  exceed- 
ing four  years,  as  should  be  specified  in  the  order,  and  there- 
upon ordering  that  the  clerkship  should  be  for  the  term  which 
should  remain  after  deducting  from  seven  years  the  time  so  speci- 
fied in  the  order.  After  four  years'  practice  an  attorney  was  en- 
titled, as  of  course,  to  be  admitted  to  practice  as  counsel.  This 
rule  was  modified  by  a  rule  of  the  November  term,  1804,  so  that 
a  practice  of  but  three  years  was  required.     By  a  rule  of  the 

365 


LEGAL  AND  JUDICIAL 

August  term,  1806,  it  was  provided  that  no  person  other  than  a 
natural  born  or  naturalized  citizen  of  the  United  States  should  be 
admitted  as  an  attorney  and  counsellor  of  the  supreme  court. 

The  rules  relating  to  the  admission  of  solicitors  in  chancery 
were  substantially  to  the  same  effect,  except  that  the  person  ap- 
plying to  be  admitted  was  examined  before  the  chancellor,  vice- 
chancellor,  or  such  other  officer  of  the  court  as  the  chancellor 
directed  upon  a  special  order  for  examination  previously  made. 

Rule  eight,  of  the  supreme  court,  passed  at  the  January 
term,  1799,  presented  another  illustration  of  the  primitive  con- 
dition of  the  State  of  New  York  at  that  time.  It  required  every 
attorney  residing  in  the  city  of  New  York  to  have  an  agent  in  the 
city  of  Albany,  and  every  attorney  residing  in  the  city  of  Albany 
to  have  an  agent  in  the  city  of  New  York,  and  attorneys  residing 
elsewhere  to  have  two  agents,  one  in  the  city  of  New  York  and 
the  other  in  the  city  of  Albany.  The  object  of  this  rule  was  to 
make  it  less  difficult  to  serve  papers  on  attorneys  in  actions. 

The  justices  were  appointed  by  the  governor,  with  the  advice 
of  the  senate,  and  held  office  during  good  behavior,  or  until  they 
had  attained  the  age  of  sixty  years.  They  might  be  removed  by  a 
joint  resolution  of  the  legislature  in  which  two-thirds  of  the 
assembly  and  a  majority  of  the  senate  were  required  to  pass. 
They  were  exempt  from  military  service;  could  hold  no  other 
office ;  could  receive  no  fees  or  perquisites ;  could  not  sit  to  hear 
matters  wherein  they  had  any  interest  or  affinity  to  any  of  the 
parties,  and  could  not  hear  any  matter  on  appeal  in  which  they 
had  theretofore  taken  a  part.  Nor  could  they  have  a  partner  prac- 
ticing in  a  court  in  which  they  were  judges.  They  were  ex  officio, 
members  of  the  court  for  the  trial  of  impeachments  and  the  cor- 
rection of  errors. 

It  is  said  that  a  controlling  influence  in  establishing  the  age 

366 


i 


A 


i 


Joseph  C,  Yates 


'  ( 


i 


JOSEPH  C.  YATES. 

(1768-1837). 

Jurist  and  Statesman;  Mayor  of  Schenectady;  State  Sen- 
ator; Justice  Supreme  Court,  1808-22;  Governor  of  New  York, 
1823-25. 


HISTORY  OF  N  EJV  YORK 

limit  of  sixty  years  for  members  of  this  court  was  the  persistent 
continuance  in  office  of  Chief  Justice  Horsmanden,  of  the  Colonial 
and  Revolutionary  periods,  who  declined  to  vacate  his  seat  until 
long  after  the  infirmities  of  advanced  age  had  impaired  his  abili- 
ties, despite  all  efforts  that  were  made  to  persuade  him  to  resign. 
It  was  not  considered  wise  by  the  framers  of  the  first  constitution 
to  allow  another  opportunity  for  thus  tying  up  the  business  of  the 
court  by  reason  of  the  obstinacy  of  any  of  its  judges. 

In  May,  1784,  the  first  grand  jury  of  the  oyer  and  terminer 
branch  of  the  supreme  court  meeting  after  the  Revolution,  sat  in 
the  city  of  New  York.  James  Duane,  who  was  then  mayor  of  the 
city,  was  associated  with  Judge  John  Sloss  Hobart  in  the  com- 
mission issued  to  hold  the  oyer  and  terminer.  Duane  delivered 
the  charge  to  the  grand  jury. 

In  1785,  by  act  of  the  legislature,  terms  of  the  supreme 
court  were  ordered  to  be  held  in  Albany  for  two  weeks  beginning 
the  first  Tuesday  of  July,  and  for  three  weeks  beginning  the  third 
Tuesday  in  October;  the  terms  for  the  city  of  New  York  were 
for  two  weeks  beginning  the  third  Tuesday  of  January,  and  for 
three  weeks  beginning  the  third  week  in  April.  The  clerk  of  the 
court  had  his  office  in  New  York,  and  he  had  a  deputy  in  Albany. 
The  deputy  was  required  to  send  all  papers  to  New  York  once 
every  six  months. 

In  April,  1807,  the  justices  of  the  court  appointed  a  clerk  for 
Oneida  county,  with  an  office  in  Utica.  After  March  30,  181 1, 
the  terms  of  the  court  began  on  the  first  day  in  May  and  the 
third  Monday  in  October,  in  New  York  City,  and  the  first  day 
in  January  and  the  first  day  in  August,  in  Albany,  each  term 
being  for  a  period  of  two  weeks. 

By  an  act  of  the  legislature  passed  April  19,  1786,  one  or 
more   of  the  justices   of   the   supreme  court  were   required  to 

367 


LEGAL  AND  JUDICIAL 

hold  during  the  vacations,  and  more  frequently  if  necessary,  cir- 
cuit courts  in  each  of  the  counties  of  the  State  for  the  trial  of 
all  issues  triable  in  the  respective  counties.  Proceedings  were 
to  be  returned  to  the  supreme  court  to  be  recorded,  and  there 
judgment  was  given  according  to  law.  The  justices  were  also 
empowered  to  take  assize  of  novel  disseizin,  or  any  other  assize 
in  their  discretion,  at  the  circuit.  An  act  passed  February  22, 
1788,  provided  for  the  holding  of  courts  of  oyer  and  terminer 
by  the  justices  at  the  same  time  with  the  circuit,  to  continue  until 
all  business  before  it  was  disposed  of.  In  1789  the  legislature 
exacted  that  all  issues  triable  by  a  jury  might  be  tried  at  the 
circuit  or  at  the  bar  of  the  supreme  court  without  any  order 
for  the  purpose.  In  1797,  however,  it  was  provided  that  an  order 
should  be  necessary  for  such  trials.  In  February,  1796,  the 
office  of  the  clerk  of  the  circuit  was  abolished,  and  the  duties  of 
that  office  were  devolved  upon  the  respective  county  clerks.  In 
February  of  the  following  year  the  legislature  passed  a  law  direct- 
ing that  the  court  should  annually,  at  its  April  term,  designate 
one  of  its  number  to  hold  circuit  courts — one  in  the  western, 
one  in  the  eastern,  one  in  the  middle,  and  one  in  the  southern 
district. 

In  1823  the  legislature  passed  an  act  providing  that  the 
terms  of  court  for  the  city  of  New  York  should  begin  on  the  third 
Mondays  of  February  and  October,  and  on  the  first  Mondays  of 
May  and  August.  For  the  city  of  Utica  there  was  a  term  in  Au- 
gust, and  for  Albany,  terms  in  February  and  October.  If  the 
business  of  the  court  was  heavy,  the  terms  could  be  continued  for 
four  weeks;  otherwise,  and  in  the  case  of  no  returns,  the  term 
was  for  two  weeks  only. 

Subsequently,  the  terms  were  set  for  the  first  Mondays  of 
January,  May  and  July,  and  the  third  Monday  of  October.    The 

368 


W.  L.  Marcy 


I 


WILLI  AM  L.  MARCY. 

(1786-1857). 

Jurist  and  Statesman;  State  Comptroller,  1823-29;  Justice 
Supreme  Court,  1829-31;  United  States  Senator,  1831-33;  Gov- 
ernor, 1833-39;  Secretary  of  War  in  Polk's  Cabinet;  Secretary 
of  State  in  Pierce's  Cabinet. 


I 


HISTORY  OF  NEW  YORK 

January  and  October  terms  were  held  at  the  capitol  in  Albany, 
the  May  term  at  the  city  hall  in  New  York,  and  the  July  term 
at  the  academy  in  Utica.  These  terms  of  court  lasted  for  five 
weeks.  During  the  last  week  no  argument  was  heard  except  by 
consent  of  parties  and  counsel,  and  no  process  was  issued  or 
returned  after  the  second  Saturday,  except  subpoenas,  attach- 
ments, and  habeas  corpus.  In  1841  the  October  term  was  changed 
from  Albany  to  Rochester,  and  at  the  same  time  one  of  the 
justices  was  required  to  sit  at  the  capitol  in  Albany,  and  hear 
and  decide  such  non-enumerated  cases  as  should  arise,  except 
those  to  be  heard  at  term  time. 

In  1778  the  salary  of  the  chief  justice  was  $750  New  York 
currency,  and  the  salaries  of  the  associate  justices  in  the  same 
period  were  $500  per  year.  The  associate  justices  also  received 
forty  shillings  per  day  for  attendance  on  oyer  and  terminer, 
and  for  travel  fees.  From  time  to  time  in  subsequent  years,  the 
salaries  were  increased,  and  in  1797  all  the  justices  received  $2,000 
each  per  annum.  In  181 2  they  received  $3,000  per  annum,  and 
their  terms  of  service  were  three  years.  In  1816  each  received 
$4,500  per  annum,  and  there  was  no  limit  to  the  term  of  ser- 
vice. In  April,  1816,  the  legislature  enacted  that  the  justices 
residing  in  New  York  City  should  be  entitled  to  fees  for  trans- 
acting chamber  business  and  for  services  pertaining  to  their 
offices.  Two  years  later  the  salaries  were  reduced  to  $3,500 
each,  and  in  the  ensuing  year  a  further  reduction  was  made  to 
$3,000.  After  1823,  the  annual  salary  of  each  judge  was  $2,000; 
in  1835  this  was  increased  to  $2,500,  and  in  1839  was  made 
$3,000,  and  permanent.  By  the  act  of  1835,  all  compensations 
for  travel  or  for  attendance  as  members  of  the  court  of  er- 
rors was  abolished. 

On  February  6,  1798,  James  Kent  was  appointed  to  be  a 

369 


LEGAL  AND  JUDICIAL 

justice  of  this  court.  Soon  after  taking  his  seat  he  introduced 
the  practice  of  presenting  a  written  opinion  on  all  matters  which 
were  considered  of  sufficient  importance  to  make  the  decision 
of  the  court  of  value  as  a  precedent.  This  practice  added  greatly 
to  the  value  and  importance  of  the  court,  and  it  became  an  essen- 
tial part  of  early  American  jurisprudence.  It  was  soon  adopted 
by  other  justices,  and  in  1804,  George  Caines,  with  a  salary  of 
$850  a  year,  was  appointed  official  reporter,  to  report  and  to  pub- 
lish the  decisions  of  this  court  and  also  of  the  court  for  the  cor- 
rection of  errors.  From  that  time  the  Supreme  Court  Reports 
have  been  an  indispensable  part  of  the  history  of  jurisprudence 
in  this  State. 

During  the  colonial  period,  a  separate  exchequer  court  did 
not  exist.  Exchequer  proceedings  were  in  the  supreme  court 
or  the  court  of  chancery.  By  a  legislative  act  passed  February 
9,  1786,  the  exchequer  court  was  reorganized  as  a  branch  of 
the  new  supreme  court  of  the  state.  The  junior  justice,  or,  in 
his  absence,  one  of  the  puisne  justices,  was  empowered  to  hold  a 
court  for  the  hearing  and  determination  of  all  causes  and  motions 
concerning  fines,  forfeitures,  issues,  amercements  and  debts  due 
to  the  people  of  the  State  according  to  law,  and  the  cause  of 
exchequer.  It  was  ordered  that  exchequers  should  be  held  dur- 
ing every  term  of  the  supreme  court,  or  during  such  part  thereof 
as  should  be  necessary,  and  in  some  place  convenient  to  where 
the  supreme  court  was  sitting.  Neither  salaries  nor  fees  were 
allowed  to  the  justice  who  was  holding  this  court  on  the  ground 
of  "his  salary  and  fees  as  justice  of  the  supreme  court  being 
considered  as  full  compensation  for  his  services  in  holding 
exchequer."  A  seal  was  ordered  for  the  court,  and  William 
Popham  was  appointed  clerk  of  the  justices  of  the  supreme 
court  on  July  17,   1786.     On  April  3,  1803,  the  law  relating  to 

370 


Morgan  Lewis 


MORGAN  LEWIS. 

(1754-1844). 

Lawyer,  Soldier,  Statesman  and  jurist;  Member  of  Assem- 
bly; Attorney  General ;  Chief  Justice  'Supreme  Court ;  Governor, 
1805-6. 


HISTORY  OF  NEW  YORK 

the  court  was  reenacted  with  some  changes.  By  the  general 
act  of  repeal  of  December,  1828,  the  court  was  abolished  on 
January  i,  1830.  William  Popham  had  retained  his  position  as 
clerk  during  this  entire  period,  from  1786  to  1830. 

The  chief  justices  of  the  supreme  court  during  the  first 
seventy  years  of  the  State  government,  and  the  dates  of  their 
appointment  were:  John  Jay,  May  8,  1777;  Richard  Morris, 
October  23,  1779;  Robert  Yates,  September  28,  1790;  John 
Lansing,  Jr.,  February  15,  1798;  Morgan  Lewis,  October  15, 
1801 ;  James  Kent,  July  2,  1804;  Smith  Thompson,  February 
3,  1814;  Ambrose  Spencer,  February  29,  1819;  John  Savage, 
January  29,  1823;  Samuel  Nelson,  August  31,  1831;  Greene  C. 
Bronson,  March  5,  1845  '>    Samuel  Beardsley,  June  28,  1847. 

The  associate  or  puisne  justices,  with  the  dates  of  their 
appointment,  were:  Robert  Yates,  May  8,  1777;  John  Sloss 
Hobart,  May  8,  1777;  John  Lansing,  Jr.,  September  28,  1790; 
Morgan  Lewis,  December  24,  1792;  Egbert  Benson,  January 
29,  1794;  James  Kent,  February  6,  1798;  John  Cozine,  August 
9,  1798;  Jacob  Radcliff,  December  27,  1798;  Brockholst  Livings- 
ton, January  8,  1802 ;  Smith  Thompson,  January  8,  1802 ;  Am- 
brose Spencer,  February  3,  1804;  Daniel  D.  Tompkins,  July  2, 
1804;  William  W.  Van  Ness,  June  7,  1808;  Joseph  C.  Yates, 
February  8,  1808;  Jonas  Piatt,  February  23,  1814;  John  Wood- 
worth,  March  27,  1819;  Jacob  Sunderland,  January  29,  1823; 
William  L.  Marcy,  January  21,  1829;  Samuel  Nelson,  February 
I,  1831 ;  Greene  C.  Bronson,  January  6,  1836;  Esek  Cowen, 
August  31,  1836;  Samuel  Beardsley,  February  20,  1844;  Free- 
born G.  Jewett,  March  5,  1845  >  Frederick  Whittlesey,  June  30, 
1847;   Thomas  McKissock,  July  4,  1847. 

By  legislative  act  under  the  provisions  of  the  Constitution 
of  182 1,  the  State  was  divided  into  eight  circuits,  corresponding 

371 


LEGAL  AND  JUDICIAL 

to  the  eight  senatorial  districts  as  they  then  existed.  In  each 
circuit  a  judge  was  appointed  in  the  same  manner,  and  to  hold 
office  by  the  same  tenure  as  a  justice  of  the  supreme  court.  He 
possessed  the  powers  of  the  justice  of  the  supreme  court  in 
chambers,  and  in  the  trial  of  issues  joined  in  the  supreme  court, 
and  in  courts  of  oyer  and  terminer  and  jail  delivery.  Equity 
jurisdiction  was  conferred  by  the  legislature,  and  it  was  further 
provided  that  appeals  should  be  made  to  the  chancellor.  Two 
courts  were  held  each  year  in  each  county,  except  in  New  York 
county,  where  four  were  held  annually.  The  county  clerks  were 
clerks  of  the  circuit  courts  except  in  New  York,  where  the  clerk 
of  the  supreme  court  was  also  clerk  of  the  circuit  court.  In 
May,  1823,  the  circuit  court  adopted  the  following  seal :  In  the 
center  an  open  scroll  surrounded  by  rays ;  the  words  "Equity" 
inscribed  on  the  upper  part  of  the  scroll,  and  a  sword  and  olive 
branch  crossed  upon  the  lower  edge  surrounded  by  the  words 
"State  of  New  York,  Circuit  Court." 

Circuit  judges  held  courts  of  oyer  and  terminer  at  the  same 
time  as  the  circuit  courts  were  held.  In  the  counties,  at  least  two 
judges  were  associated  with  them  in  oyer  and  terminer.  In  the 
city  of  New  York,  the  mayor,  recorder  and  aldermen,  or  any  two 
of  them,  sat  with  the  presiding  justice,  and  the  same  procedure 
was  followed  in  Albany,  Columbia  and  Rensselaer  counties.  In 
Schenectady,  the  mayor  and  aldermen  sat  with  the  presiding  jus- 
tice. The  governor  had  power  to  issue  commissions  of  oyer  and 
terminer  to  supreme  or  circuit  judges.  The  court  of  oyer  and 
terminer  had  power  by  the  grand  jury  to  inquire  into  all  crimes 
and  misdemeanors  in  all  counties,  to  try  all  indictments  by  a  grand 
jury  of  the  court  of  general  sessions,  and  also  to  deliver  the  jails. 

Following  is  a  list  of  the  circuit  judges  of  the  supreme 
court  from  1823  to  1847,  with  the  dates  of  their  appointment: 

372 


I 


WILLIAM  MITCHEL. 

(1801-1886). 

Jurist ;  Justice  Supreme  Court  First  District,  1849-58 ; 
Judge  Court  of  Appeals,  1856;  Presiding  Justice  Supreme  Court, 
general  term,  1857. 


-:li59qqA  io  J'lUu'J  agbul 


William  Mitchell 


I 

I 

I 


\ 


f 


HISTORY  OF  NEW  YORK 

First  Circuit:  Ogden  Edwards,  April  21,  1823;  William 
Kent,  August  17,  1841 ;  John  W.  Edmonds,  February  18,  1845. 

Second  Circuit:  Samuel  R.  Betts,  April  21,  1823;  James 
Emott,  February  21,  1827;  Charles  H.  Ruggles,  March  19,  1831; 
Selah  B.  Strong,  March  27,  1846;  Seward  Barculo,  April  4,  1846. 

Third  Circuit:  William  A.  Duer,  April  21,  1823;  James 
Vanderpoel,  January  12,  1830;  John  P.  Cushman,  February  9, 
1838;  Amasa  J.  Parker,  March  6,  1844. 

Fourth  Circuit:  Reuben  H.  Walworth,  April  21,  1823;  Esek 
Cowen,  April  22,  1828;  John  Willard,  September  3,  1836. 

Fifth  Circuit:  Nathan  Williams,  April  21,  1823;  Samuel 
Beardsley,  April  12,  1834;  Hiram  Denio,  May  7,  1834;  Isaac  H. 
Bronson,  April  18,  1838;  Philo  Gridley,  July  17,  1838. 

Sixth  Circuit:  Samuel  Nelson,  April  21,  1823;  Robert 
Monell,  February  11,  1831;  Hiram  Gray,  January  13,  1846. 

Seventh  Circuit:  Enos  T.  Throop,  April  21,  1823;  Daniel 
Moseley,  January  i6,  1829;  Bowen  Whiting,  April  7,  1844. 

Eighth  Circuit:  William  B.  Rochester,  April  21,  1823;  Albert 
H.  Tracy,  March  26,  1826;  John  Birdsall,  April  18,  1826;  Addi- 
son Gardiner,  September  29,  1829;  John  B.  Skinner,  February  9, 
1838;  Nathan  Dayton,  February  23,  1838. 


373 


CHAPTER  IX 
Another  Half  Century  of  Development 


CHAPTER  IX 

Another  Half  Century  of  Development 

1850 — 1900 

CHANGE  IN  THE  METHOD  OF  SECURING  JUDGES — THE  APPOINTIVE 
SYSTEM  IS  ABANDONED  AND  ELECTION  BY  THE  PEOPLE  IS  SUB- 
STITUTED— SUCCESS  OF  THE  NEW  PLAN — INSTITUTION  OF  A 
NEW  COURT  OF  APPEALS — THE  JUDGES  ON  THAT  BENCH  AND 
THE  JUSTICES  OF  THE  SUPREME  COURT — END  OF  THE  HISTORIC 
COURT  OF  COMMON  PLEAS  AND  OF  THE  SUPERIOR  COURT  OF 
NEW  YORK  CITY — CHANGES  IN  THE  FORM  OF  THE  SUPREME 
COURT — EMINENT  JUDGES  OF  THE  PERIOD. 

The  middle  of  the  nineteenth  century  was  a  turning  point  in 
the  history  of  the  judiciary  of  the  State.  Prior  to  that  time  the 
judges  had  been  appointees  of  the  governor,  subject  to  the  con- 
firming powers  of  the  senate.  In  a  sense  this  was  a  continuance 
of  the  old  autocratic  system  which  had  prevailed  in  the  colonial 
period.  Then  the  judges  were  created  by  the  governor  and  coun- 
cil as  representatives  of  the  king  and  in  slight  degree  only  were 
subject  to  the  popular  legislature.  Thus  supported  by  royal  pre- 
rogative they  enjoyed  pre-eminent  distinction  and  exercised  pre- 
eminent powers.  It  was  perhaps  natural  that  in  the  first  years 
under  the  State  government  the  influence  of  this  system  should 
still  prevail.  For  the  royally  appointed  governor  and  council,  the 
popularly  elected  governor  and  senate  had  been  substituted  ;  while 
this  change  to  democracy  was  complete,  yet  it  is  undoubted  that 
the  judges,  looking  directly  to  the  governors  for  their  authority, 

377 


LEGAL  AND  JUDICIAL 

still  felt  to  a  certain  degree  their  superiority  to  the  dominant  pow- 
er of  the  people  as  a  whole.  This  sentiment  extended  to  the  legal 
profession  generally  as  has  been  pointed  out  by  many  writers. 
One  who  has  written  much  on  the  subject  has  said: — 

"The  qualifications  of  the  lawyer  class  were  of  extreme  importance 
under  the  first  constitution  of  New  York,  and  were  so  treated,  for  they 
might  be  called  upon  as  lawyers  to  exercise  political  functions  new  to  the 
history  of  their  profession.  Indeed,  by  a  singular  provision  of  this  con- 
stitution, they  were  the  only  class  in  the  state  deemed  competent  to  con- 
stitute the  council  of  revision,  which  enjoyed  the  power  of  revising  laws 
and  a  qualified  negative  on  all  legislation.  Such  an  anomalous  privilege 
did  much  to  justify  Mr.  de  Tocqucville's  observation  (now  no  longer  true) 
to  the  effect  that  the  lawyer  class  stood  in  America  for  the  aristocracy 
of  other  countries.  In  New  York  the  chancellor  and  the  justices  of  the 
supreme  court,  under  the  first  state  constitution,  possessed  more  power 
than  the  judges  of  any  other  modern  political  community  of  the  world. 
They  not  only  enjoyed  the  enormous  powers  and  jurisdiction  vested  in 
the  judges  of  the  great  British  courts,  but  they  sat  in  the  final  court  of 
errors  as  well,  and  in  addition  had,  practically  for  life,  or  good  behavior, 
the  old  veto  power  on  legislation  inherited  from  the  English  crown.  They 
thus,  far  more  than  any  other  class,  succeeded  to  the  old  power  of  the 
crown  over  the  province  of  New  York.  Allied  to  the  interests  of  the 
manor  proprietors,  the  judges  could,  under  the  first  constitution,  if  they 
were  so  disposed,  direct  and  control  the  entire  government  of  the  state. 
This  fact,  taken  in  connection  with  the  very  restricted  character  of  the 
suffrage, — for  only  freeholders  possessing  considerable  estates  could  then 
vote  for  governor  or  senators, — made  the  government  of  New  York  down 
to  the  eighteenth  century  a  very  unsatisfactory  one,  and  republican  largely 
in  name.  That  such  a  form  of  government  was  tolerated  as  late  as  the 
year  1821  was  largely  due  to  the  fact  that  the  recipients  of  this  enormous 
power  were  men  of  unusual  accomplishments  and  of  a  private  character 
never  excelled  in  the  history  of  the  American  states."^ 

For  a  long  time  there  had  been  a  growing  popular  discontent 
throughout  the  State  in  regard  to  this  condition  of  affairs.  The 
people  felt  that,  even  though  in  changing  the  royal  governor  for 


I.  "Constitutional  and  Legal  History  of  New  York  in  the  Eighteenth 
Century"  by  Robert  Ludlow  Fowler,  in  "The  Memorial  History  of  the 
City  of  New  York,"  vol.  II.,  p.  627. 

378 


HISTORY  OF  NEW  YORK 

a  governor  of  their  own  election  they  had  achieved  freedom,  some 
problems  in  self  government  yet  remained  to  be  solved.  They  had 
not  only  the  right  to  go  further,  but  it  seemed  to  be  imperatively 
necessary  to  bring  the  courts  nearer  to  themselves.  Many  crit- 
icisms of  the  method  of  appointment  by  the  governor  and  the 
senate  had  been  made  and  some  of  the  ill  results  brought  about  by 
thus  placing  judges  upon  the  bench  were  pointed  out.  More  or 
less  dissatisfaction  with  the  constitution  and  the  work  of  some 
of  the  courts  existed,  and,  especially  as  regarded  the  court  of 
chancery,  the  people  began  to  feel  that  it  was  in  many  respects  too 
far  removed  from  them  to  always  consider  their  best  interests.  It 
was  also  argued  that  the  courts  of  common  pleas  were  not  as  per- 
fectly constituted  as  they  should  be,  in  some  instances  laymen 
and  inferior  lawyers  having  been  appointed  to  positions  on  the 
bench.  Sentiment  had  developed  in  favor  of  less  prolonged  terms 
of  office  for  the  judges,  so  that  their  continuance  upon  the  bench 
should  be  more  contingent  upon  their  repeated  elections  when  the 
people  should  have  opportunity  to  approve  or  disapprove  of  their 
official  conduct.  A  writer  on  this  subject  has  said :  "One  thing 
is  evident:  the  appointing  system  did  not  uniformly  secure  judges 
who  were  not  politicians,  nor  save  some  of  them  from  the  popular 
belief  and  accusation  that  they  continued  to  be  politicians  after 
reaching  the  bench. "^ 

Due  deference  to  these  considerations  influenced  the  consti- 
tutional convention  of  1847  to  decide  that  thereafter  the  judges,  at 
least,  of  the  important  courts,  should  be  elected  instead  of  ap- 
pointed. The  success  of  this  experiment  of  popular  elections  for 
the  judges  instead  of  their  gubernatorial  appointment  was  marked 
from  the  outset.  Those  who  had  looked  for  disaster  from  this 
method  of  procedure  were  confounded.    It  was  apparent  at  once 


2.    "Public  Service  of  the  State  of  New  York,"  vol.  III.,  p.  25. 

379 


LEGAL  AND  JUDICIAL 

that  the  fears  lest  partisanship  and  politics  should  be  injected 
into  the  selection  of  the  judges  and  thus  pervert  the  courts  were 
wholly  unfounded.  In  the  first  election  those  who  were  chosen 
to  judicial  position  compared  favorably,  to  say  the  least,  with  their 
predecessors  who  had  been  appointed  by  the  governors.  The  best 
talent  of  the  legal  profession  of  the  period  was  drawn  upon  for 
service  upon  the  bench.  Many  individuals  who  were  in  nowise 
identified  with  politics  were  nominated  and  elected,  and  even  those 
who  had  been  active  in  political  affairs  before  their  elevation  to 
the  bench  immediately  left  their  politics  behind.  Many  nomina- 
tions were  made  quite  regardless  of  politics,  and  all  parties  sup- 
ported men  who  were  on  non-partisan  tickets. 

The  spirit  which  was  then  exhibited  so  unexpectedly  strong 
has  ever  since  continued  to  characterize  the  attitude  of  the  people 
toward  the  judicial  system  of  the  state.  After  nearly  half  a  cen- 
tury of  experience  under  this  system  a  commentator  upon  the 
history  of  the  court  of  appeals  remarked,  "It  is  believed  by  the 
members  of  the  court  and  probably  by  the  great  mass  of  thought- 
ful citizens  that  the  court  under  the  original  organization  and  now, 
is  as  free  from  political  bias  as  the  imperfections  of  human  na- 
ture will  allow,  and  that  its  decisions  have  never  been  liable  to 
the  charge  of  being  controlled  or  tinged  by  partisan  motive." 
Like  words  can  be  fittingly  applied  to  the  entire  judicial  system 
of  the  State  as  it  has  been  since  1847  to  the  present  time.  The 
experiment  of  the  middle  of  the  century,  radical  as  it  was,  re- 
sulted in  a  remarkable  degree  in  the  improvement  of  the  per- 
sonality of  the  judiciary,  its  usefulness  and  its  high  standing 
generally. 

After  1847  the  two  original  functions  of  the  appellate  court, 
that  of  the  trial  of  impeachments  and  the  review  of  cases  on  ap- 
peal, were  separated.     To  a  new  court  of  appeals  was  assigned 

380 


HISTORY  OF  NEW  YORK 

the  purely  judicial  functions  of  the  old  court.  Whereas  under  the 
first  two  constitutions  of  the  State  the  court  for  the  trial  of  im- 
peachments and  correction  of  errors  consisted  of  the  president  and 
members  of  the  senate,  the  chancellor  and  the  judges  of  the  su- 
preme court,  the  new  court  of  appeals  consisted  of  eight  judges. 
Four  of  the  judges  were  chosen  at  large  by  the  electors  of  the 
state  for  terms  of  eight  years  each  while  the  other  four  were  se- 
lected from  among  those  justices  of  the  supreme  court  who  had 
the  shortest  time  to  serve.  Six  justices  were  required  for  a  quor- 
um and  the  concurrence  of  five  was  necessary  in  order  to  give 
judgment.  That  judge  who  was  elected  by  the  State  at  large 
and  had  the  shortest  term  to  serve  acted  as  chief  judge.  The 
clerk  was  elected  by  the  people  for  a  term  of  three  years,  while 
the  reporter  was  appointed  by  the  attorney  general  for  a  term  of 
three  years.  Regarding  the  court  of  errors  an  eminent  lawyer  has 
said : 

"By  the  provisions  of  the  constitution  of  1846  the  time-honored  court 
for  the  trial  of  impeachments  and  the  correction  of  errors  ceased  to  be, 
and  in  its  stead  was  established  our  present  final  tribunal,  the  court  of  ap- 
peals. The  former  seemed  ill-constituted,  as  it  consisted  of  thirty-three 
presumably  lay  members  (the  lieutenant-governor  and  the  senators),  while 
there  were  but  four  law  judges  (the  chancellor  and  the  three  judges  of 
the  supreme  court).  The  chancellor  did  not  sit  on  the  hearing  of  appeals 
from  his  decisions,  nor  did  the  judges  of  the  supreme  court  at  the  hear- 
ing on  writs  of  errors  from  theirs.  Yet  the  decisions  of  the  court  of 
errors  ranked  very  high  in  the  jurisprudence  of  the  country.  It  always 
happened  that  some  of  the  senators  were  able  lawyers,  and  most  of  the 
others  were  practical  men  of  business  experience  and  sound  judgment, 
and  their  strong  good  sense,  blending  with  the  learned  wisdom  of  the 
judges,  mitigated  merely  technical  or  over-rigid  rules  of  law  where  they 
conflicted  with  substantial  justice,  and  resulted  in  rational  decisions  on 
reasonable  instead  of  harsh,  application  of  those  rules.  As  'Mind  governs 
matter',  it  followed  that  such  of  the  other  lay  members  of  the  court  as 
had  no  knowledge  and  little  judgment  concurred  in  what  their  wise  breth- 
ren did,  and  became  practically  as  harmless  as  those  worthy  rural  digni- 
taries whom  we  have  all  seen  sitting  solemn  and  silent  on  the  bench  by 

^    381 


LEGAL  AND  JUDICIAL 

the  side  of  the  circuit  judge.  I  believe  that,  by  the  general  voice  of  the 
bar,  the  court  of  errors  was  one  of  the  very  strongets  judicial  tribunals 
in  this  country."* 

Reorganized  under  the  provisions  of  the  amendment  to  the 
constitution  adopted  in  1869  the  court  was  composed  of  a  chief 
judge  and  six  associates  elected  from  the  State  at  large  and  holding 
office  for  a  term  of  fourteen  years,  beginning  with  the  year  1870. 
Provision  was  also  made  for  a  commission  of  appeals  consisting 
of  four  judges  of  the  old  court,  and  a  fifth  commissioner  ap- 
pointed by  the  governor  with  a  term  of  office  limited  to  three 
years.  To  this  commission  was  delegated  the  duty  of  completing 
the  work  which  had  been  left  over  by  the  preceding  court  of  ap- 
peals. Subsequently  the  term  of  office  was  extended  two  years 
pursuant  to  an  amendment  of  the  constitution  adopted  in  1872, 
and  during  that  time  it  undertook  further  work  which  was  sent 
to  it  from  time  to  time  by  the  court.     It  expired  in  July,  1875. 

The  commissioners  of  appeals,  with  the  dates  of  appoint- 
ment were:  John  A.  Lott,  July  5,  1870;  Hiram  Gray,  July  5, 
1870;  William  H.  Leonard,  July  5,  1870;  Robert  Earl,  July  5, 
1870,  Ward  Hunt,  July  5,  1870;  Alexander  S.  Johnson,  January 
7.  1873;  John  H.  Reynolds,  January  10,  1873;  Theodore  W. 
Dwight,  January  7,   1874. 

In  the  first  election,  in  1870,  the  following  were  elected  judges 
of  the  new  court  of  appeals:  Sanford  E.  Church,  WilHam  F.  .Al- 
len, Rufus  W.  Peckham,  Martin  Grover,  Charles  A.  Rapallo, 
Charles  Andrews  and  Charles  J.  Folger.  They  entered  upon  their 
duties  on  the  first  Monday  of  July,  1870.  Chief  Judge  Church 
and  Associate  Judges  Allen,  Peckham,  Grover  and  Rapallo  were 


3.  Benjamin  D.  Silliman  in  an  address  delivered  at  a  complimentary 
dinner  May  24,  1889,  tendered  to  him  by  the  members  of  the  bar  of  New 
York  and  Brooklyn  in  observance  of  the  Sixtieth  anniversary  of  his  ad- 
mission to  practice. 

382 


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I 


XEW  COURT  OF  APPEALS.  1870. 

From  left  to  right,  seated  :  i.  Charles  J.  Folger.  2.  William 
F.  Allen.  3.  Sanford  E.  Church,  Chief  Judge.  4.  Martin  Gro- 
ver.  5.  Rufus  W.  Peckham,  Senior.  Standing:  i.  Charles  An- 
drews.   2.  E.  O.  Perrin,  Clerk  of  Court.    3.  Charles  A.  Rapallo. 


HISTORY  OF  NEW  YORK 

Democrats,  while  Associate  Judges  Andrews  and  Folger  were  Re- 
publicans. Chief  Judge  Church  and  Associate  Judges  Allen, 
Peckham,  Grover  and  Rapallo  died  in  office.  Judge  Folger  re- 
signed in  1881,  when  he  became  secretary  of  the  treasury  under 
President  Arthur.  Judge  Andrews  was  re-elected  and  served  un- 
til he  was  compelled  to  retire  by  the  constitutional  age  limit. 

Prior  to  1859  each  judge  of  the  court  of  appeals  received 
an  annual  salary  of  twenty-five  hundred  dollars.  Subsequent  to 
this  their  salaries  were  three  thousand  dollars  each.  In  1870  an 
act  of  the  legislature  fixed  the  salary  of  the  chief  judge  of  the 
court  at  seven  thousand  five  hundred  dollars,  and  that  of  each  of 
the  associate  judges  at  seven  thousand  dollars  per  year.  Subse- 
quently the  legislature  established  the  salary  of  the  chief  judge  of 
this  court  at  ten  thousand  five  hundred  dollars,  and  the  salaries  of 
the  associate  judges  at  ten  thousand  dollars,  with  an  allowance  to 
each  of  three  thousand  seven  hundred  dollars  annually  for  their 
expenses.  The  court  is  almost  continually  in  session,  except  dur- 
ing the  summer  vacation  period,  it  taking  such  recesses  from  time 
to  time  as  it  may  decide  upon.  The  office  of  the  clerk  of  the  court, 
who  has  a  salary  of  five  thousand  dollars,  is  in  the  capitol  at  Al- 
bany, and  the  reporter  of  the  court  also  has  a  salary  of  five  thou- 
sand dollars.  A  full  account  of  the  provisions  establishing  this 
court,  its  jurisdiction,  composition  and  so  on,  will  be  found  in  a 
section  of  this  work  treating  of  the  constitutional  history  of  the 
State. 

The  judges  of  the  old  court  of  appeals  from  its  establishment 
in  1847  u"til  1870,  with  the  dates  of  their  election  or  appointment, 
were:  Freeborn  G.  Jewett,  June  7,  1847;  Greene  C.  Bronson, 
June  7,  1847;  Charles  H.  Ruggles,  June  7,  1847;  Addison  Gar- 
diner, June  7,  1847;  Freeborn  G.  Jewett,  November  6,  1849; 
Samuel  A.  Foote,  April  11,  1851;  Alexander  S.  Johnson,  No- 
vember 4,  1851 ;  Charles  H.  Ruggles,  November  8,  1853;  Hiram 

383 


LEGAL  AND  JUDICIAL 

Denio,  June  23,  1853 ;  George  F.  Comstock,  November  7,  1853 ; 
Samuel  L.  Selden,  November  7,  1855 ;  Hiram  Denio,  November 
3,  1857;  Henry  E.  Davies,  November  8,  1859;  William  B.  Wright, 
November  5,  1861 ;  Henry  R.  Selden,  July  i,  1862 ;  John  K.  Por- 
ter, January  2,  1865;  Ward  Hunt,  November  7,  1865;  Martin 
Grover,  November  5,  1867;  Lewis  B.  Woodruff,  January  4,  1868; 
Charles  Mason,  January  20,  1868;  Robert  Earl,  November  2, 
1869;   John  A.  Lott,  November  2,  1869. 

The  judges  who  were  first  elected  to  the  court  of  appeals  un- 
der the  Constitution  of  1846  were  men  of  high  standing  and  of 
excellent  legal  and  judicial  ability,  even  if  they  did  not  attain  to 
the  pre-eminent  distinction  that  characterized  the  careers  of  some 
of  their  predecessors. 

Freeborn  G.  Jewett,  who  was  first  on  the  list  of  elected  judges 
and  thus  became  chief  judge,  was  a  native  of  Connecticut,  where 
he  was  born  in  1791.  He  had  a  common  school  education  and 
after  his  admission  to  practice  at  the  bar  took  a  foremost  position 
both  in  his  profession  and  in  public  affairs.  Before  he  was  ele- 
vated to  the  bench  he  held  several  offices  of  a  political  character, 
being  an  inspector  of  state  prisons,  a  member  of  the  assembly,  a 
member  of  congress,  and  also  a  county  judge  and  a  circuit  judge. 
Elected  to  the  court  of  appeals  in  1847  for  a  term  of  two  years, 
he  was  re-elected  in  1849,  ^"d  resigned  from  the  bench  in  1853. 
His  contemporaries  regarded  him  as  a  judge  of  strong  intellect 
and  the  opinions  which  he  delivered  while  on  the  bench,  constru- 
ing the  code  of  civil  procedure,  were  especially  clear,  and  ever 
since  his  day  have  been  cited  as  precedents.  He  died  in  New 
York  in  1858. 

Greene  Currier  Bronson,  second  on  the  list  of  the  members  of 
this  court,  elected  in  1847,  was  born  in  Oneida,  New  York,  in 
1789,  and  establishing  himself  in  Utica  became  one  of  the  leading 

384 


HISTOR  Y  OF  NEIF  YORK 

lawyers  of  that  section  of  the  State.  His  activities  were  both 
poHtical  and  professional.  He  was  elected  surrogate  of  Oneida 
county  in  1819,  a  member  of  the  assembly  in  1822,  appointed  at- 
torney general  in  1829,  in  which  position  he  served  seven  years; 
and  a  puisne  judge  of  the  supreme  court  in  1836.  In  1845  he  be- 
came chief  justice  of  the  supreme  court,  and  two  years  later  a 
member  of  the  court  of  appeals.  Retiring  from  the  bench  in  185 1, 
he  removed  to  New  York  city  and  was  collector  of  the  port  for 
the  year  following  1853.  In  1855  he  was  a  Democratic  candidate 
for  governor  of  the  State,  and  from  i860  to  1863  corporation  coun- 
sel of  the  city  of  New  York.  He  was  held  in  high  esteem  by  both 
bench  and  bar,  and  upon  the  occasion  of  his  death,  which  occurred 
in  Saratoga,  New  York,  September  3,  1863,  the  court  of  appeals 
in  a  minute  adopted  at  that  time  paid  him  the  following  tribute : 

"Especially  in  the  department  of  judicial  duty  he  was  justly  pre-em- 
inent.  His  opinions,  both  in  the  supreme  court  and  in  this  court,  are  models 
of  judicial  excellence.  In  conciseness  and  perspicuity  of  expression, 
in  terseness  and  directness  of  style,  in  compactness  and  force  of  logic  and 
in  sturdy  vigor  of  intellect,  they  are  unsurpassed.  Careful  and  deliberate 
in  the  formation  of  his  conclusions,  he  was  from  the  very  strength  of  his 
convictions,  tenacious  and  confident  of  their  correctness  and  courageous 
and  resolute  in  their  expression.  Firm  in  integrity  of  purpose  and  action, 
bold  in  the  denunciation  and  exposure  of  fraud,  he  was  at  the  same  time 
gentle  and  genial  in  ail  the  relations  of  friendship  and  private  life." 

Charles  H.  Ruggles,  the  third  on  the  list  of  the  new  judges 
of  this  court,  was  born  in  Connecticut,  February  10,  1789.  He 
was  the  son  of  Samuel  Bulkeley  Ruggles,  a  successful  lawyer  of 
New  York  city,  and  active  and  prominent  in  the  public  affairs  of 
the  State  in  the  middle  of  the  nineteenth  century,  being  especially 
distinguished  for  the  attention  which  he  gave  to  the  Erie  Canal, 
both  as  a  private  citizen  and  as  a  canal  commissioner.  He  began 
the  practice  of  law  in  Kingston,  New  York,  and  early  entered 

385 
as 


LEGAL  AND  JUDICIAL 

into  political  life,  being  a  member  of  the  assembly  in  1820,  and  a 
member  of  congress  from  1821  to  1823.  Placed  upon  the  circuit 
bench  of  the  second  circuit,  he  made  an  excellent  reputation  as  a 
jurist,  but  leaving  that  office,  again  became  a  member  of  the  legis- 
lature and  was  a  delegate  to  the  constitutional  convention  of  1846, 
and  chairman  of  the  committee  of  that  body  which  prepared  the 
judiciary  article.  He  sat  on  the  bench  of  the  court  of  appeals 
from  1847  until  his  resignation  in  1855.  He  died  in  Poughkeepsie, 
New  York,  in  1865. 

Addison  Gardiner,  who  was  associated  with  the  three  preced- 
ing judges  on  the  bench  of  this  court  from  1847,  was  a  native  of 
New  Hampshire,  where  he  was  born  in  1797.  He  was  graduated 
from  Union  College,  in  1819,  and  then  began  the  study  of  law  in 
the  town  of  Manilas,  to  which  place  his  father  had  removed  from 
New  Hampshire.  He  was  admitted  to  the  bar  in  1822,  and  re- 
moved to  Rochester,  where  he  began  a  career  which  made  him  one 
of  the  most  distinguished  lawyers  of  western  New  York.  He  was 
early  chosen  a  justice  of  the  peace;  was  appointed  district  at- 
torney from  Monroe  county  in  1825,  and  afterwards  began  prac- 
tice in  partnership  with  Samuel  L.  Selden  and  Henry  R.  Selden, 
the  firm  becoming  one  of  the  most  famous  in  Rochester  and  in 
that  section  of  the  State.  In  1829  Mr.  Gardiner  was  appointed  cir- 
cuit judge  for  the  eighth  circuit,  but  after  sitting  upon  the  bench 
for  nine  years  he  resigned  and  resumed  practice  in  Rochester. 
In  1844  he  was  elected  lieutenant  governor  of  the  State  on  the 
ticket  with  Silas  Wright.  While  he  was  serving  as  lieutenant 
governor,  in  1847,  he  was  chosen  judge  of  the  court  of  appeals, 
and  resigned  his  State  office.  Serving  as  judge  of  the  court  of 
appeals  until  1855,  he  declined  a  re-election  and  returned  to  prac- 
tice in  Rochester,  where  he  remained  until  his  death.  After  his 
retirement  to  private  practice  it  was  said  of  him  that  "he  was 

386 


Rufus  W.  Peckham 


RUFUS  W.  PECKHAM. 

(1838-1909). 

Distinguished  Lawyer  and  Jurist;  District  Attorney  Albany 
County,  1868-70;  Corporation  Counsel  of  Albany  for  several 
years;  Justice  Supreme  Court  of  New  York,  1883-86:  Judge  of 
the  Court  of  Appeals.  1886-95  ;  Justice  of  United  States  Supreme 
Court,  1 895- 1909. 


iiml*i\'- 


HISTORY  OF  NEW  YORK 

regarded  as  the  Nestor  of  the  bar  of  western  New  York,  and  law- 
yers constantly  consulted  him  when  in  difficulties  with  their  own 
cases.  He  played  the  role  of  a  distinguished  barrister  in  the  lat- 
ter years  of  his  life." 

The  chief  judge  and  the  associate  judges  after  1870,  with  the 
dates  of  their  election  or  appointment  were : 

Chief  judges:  Sanford  E.  Church,  May  17,  1870;  Charles 
J.  Folger,  "Slay  20,  1880;  Charles  Andrews,  November  10,  1881 ; 
William  C.  Ruger,  November  7,  1882;  Robert  Earl,  January  25, 
1892;  Charles  Andrews,  November  7,  1892;  Alton  B.  Parker, 
November  2,  1897;  Edgar  M.  Cullen,  November  8,  1904. 

Associate  judges:  William  F.  Allen,  May  17,  1870;  Mar- 
tin Grover,  May  17,  1870;  Rufus  W.  Peckham,  May  17,  1870; 
Charles  A.  Rapallo,  May  17,  1870;  Charles  J.  Folger,  May  17, 
1870;  Charles  Andrews,  May  17,  1870;  Alexander  S.  Johnson, 
December  29,  1873;  Theodore  Miller,  November  3,  1874;  Robert 
Earl,  November  5,  1875;  Samuel  Hand,  June  10,  1878;  George 
F.  Danforth,  November  5,  1878;  Francis  M.  Finch,  May  25, 
1880;  Benjamin  F.  Tracy,  December  8,  1881 ;  Rufus  W.  Peck- 
ham,  November  2,  1886;  John  Clinton  Gray,  January  25,  1888; 
Denis  O'Brien,  November  5,  1889;  Isaac  H.  INIaynard,  January 
20,  1892;  Edward  T.  Bartlett,  November  7,  1893;  Albert  Haight, 
November  6,  1894;  Irving  G.  Vann,  December  31,  1895;  Celora 
E.  Martin,  November  6,  1895;  Judson  S.  Landon,  January  i,  1900, 
Edgar  M.  Cullen,  January  i,  1900;  William  E.  Werner,  January 
I,  1900;  Willard  Bartlett,  January  i,  1906;  Frank  H.  Hiscock, 
January  i,  1906;   Emory  A.  Chase,  January  i,  1906.* 


*Judges  Landon,  Cullen,  Werner,  Willard  Bartlett,  Hiscock  and 
Chase  were  justices  of  the  supreme  court  designated  by  the  governor  at 
the  dates  named  to  serve  as  associate  judges  of  the  court  of  appeals,  pur- 
suant to  section  7,  article  6  of  the  Constitution.  Judges  Cullen,  Werrer 
and  Willard  Bartlett  were  afterwards  elected  to  the  court  to  fill  vacancies. 

387 


LEGAL  AND  JUDICIAL 

San  ford  E.  Church,  who  was  the  first  chief  judge  of  the  new 
court,  was  born  in  New  York  city,  April  i8,  1815,  and  died  in  Al- 
bion, New  York,  May  14,  1880.  He  had  no  collegiate  training 
and  his  legal  knowledge  was  based  on  a  sound  academic  education, 
supplemented  by  independent  studies.  Beginning  the  practice  of 
law  in  the  town  of  Albion,  he  soon  attained  excellent  reputation 
as  a  practitioner  and  also  was  prominent  in  politics,  allying  him- 
self with  the  Democratic  party.  For  more  than  a  quarter  of  a  cen- 
tury, his  political  activities  overshadowed  his  legal  pursuits  and 
attainments.  In  1842  he  was  a  member  of  the  assembly  from 
Orleans  county,  and  four  years  later  was  elected  district  attorney 
of  the  same  county.  From  1851  to  1855  he  was  lieutenant  gover- 
nor of  the  State,  and  in  1858  and  1859  State  comptroller.  In  1862 
he  was  defeated  in  the  campaign  which  he  prosecuted  for  member 
of  congress  and  the  next  year  he  met  defeat  again  when  he  was  a 
candidate  for  comptroller.  A  delegate  to  the  constitutional  con- 
vention of  1867  he  was  chairman  of  the  committee  on  finance. 

His  election  as  chief  judge  of  the  court  of  appeals  was  du- 
biously regarded  by  a  considerable  portion  of  the  people  of  the 
state.  Opposition  to  him  was  based  upon  the  fact  that  his  career 
had  been  simply  that  of  a  politician,  and  that  he  had  had  no  pre- 
vious judicial  experience  and  was  not  rated  as  a  particularly 
learned  lawyer.  It  was  considered  that  the  element  of  partisan- 
ship had  entered  too  strongly  into  his  candidacy  and  election,  and 
that  his  party  supporters  had  elevated  him  to  the  bench  more  from 
political  motives  than  for  any  general  regard  for  the  public  inter- 
est. But  in  this  respect  his  friends  and  the  supporters  of  good 
government  throughout  the  state  were  agreeably  disappointed.  His 
career  as  a  judge  was  remarkably  clear  from  any  suspicion  of 
political  perversion,  and  he  filled  the  office  to  which  he  had  been 
chosen  with  pre-eminent  distinction  and  to  the  approval  of  the 

388 


HISTORY  OF  NEfV  YORK 

profession  and  the  public  generally  until  his  sudden  death  in  1880. 
The  opinions  delivered  by  him  from  the  bench  were  brief,  but 
belonged  to  the  first  order  of  judicial  literature,  being  especially 
marked  by  simplicity  and  clearness  of  expression.  It  has  been 
well  said  of  him  that  "he  was  recognized  by  bench  and  bar  as  the 
very  model  of  the  chief  justice,  well  founded  in  learning,  of  broad, 
comprehensive  modes  of  thought,  sound  judgment,  untiring  indus- 
try and  unwearied  courtesy."* 

Charles  J.  Folger,  who  was  at  the  time  serving  as  an  associ- 
ate judge  of  the  court  of  appeals,  was  promoted  to  the  place  of 
chief  judge  upon  the  death  of  Chief  Judge  Church.  He  was  born 
on  the  island  of  Nantucket  April  16,  1818,  and  graduated  from 
Geneva  (now  Hobart)  College  at  the  age  of  eighteen,  at  the  head 
of  his  class.  Some  of  his  friends  used  to  say  that  he  was  the  only 
one  in  the  class,  but  he  always  insisted  that  there  was  another 
and  that  the  question  of  who  was  at  the  head  depended  upon  which 
way  the  class  was  counted.  He  was  admitted  to  the  bar  in  Al- 
bany in  1839,  practiced  his  profession  in  Lyons  and  afterwards 
in  Geneva  and  took  high  rank  as  a  lawyer.  At  twenty-five  he 
was  chosen  to  the  bench  of  the  common  pleas  of  Ontario  county 
and  was  county  judge  of  that  county  from  1852  to  1856.  He 
was  a  State  senator  from  1861  to  1869,  was  chairman  of  the 
judiciary  committee  of  the  senate  and  president  pro  tempore 
thereof  for  four  years.  He  was  also  a  member  of  the  constitu- 
tional convention  of  1867  and  chairman  of  its  judiciary  com- 
mittee. Although  he  had  been  elected  chief  judge  in  1880,  in 
the  following  year  he  resigned  his  high  judicial  office  to  accept 
the  position  of  Secretary  of  the  Treasury  in  President  Arthur's 
cabinet.  He  was  defeated  for  governor  in  1882  by  Grover 
Cleveland.    He  continued  at  the  head  of  the  Treasury  department 


4.    "The  Public  Service  of  the  State  of  New  York,"  vol.  Ill,  p.  36. 

389 


LEGAL  AND  JUDICIAL 

until  his  death,  September  4,  1884.  Of  him  the  late  Irving 
Browne,  long  an  intimate  acquaintance  and  friend  wrote  (2  Green 
Bag,  328)  :— 

"There  have  been  greater  legal  minds  in  this  country  and  on  this 
bench;  but  Judge  Folger  was  an  extremely  accomplished  legal  scholar, 
and  a  profound  and  equitable  judge.  In  addition,  he  was  a  grave  and 
wise  statesman,  an  elegant  scholar  in  literature,  an  affectionate  and  faith- 
ful friend,  a  noble  and  unblemished  man.  There  is  little  need  to  speak  of 
his  character  which  was  a  synon>TTi  for  integrity,  candor,  fearlessness, 
firmness,  and  devotion.  It  is  much  that  a  man  goes  through  a  long  pub- 
lic life  without  incurring  a  single  hostile  imputation;  it  is  more  that  when 
he  is  dead  and  gone,  every  survivor,  foe  as  well  as  friend,  will  rise  up 
and  testify  that  he  never  deserved  any.  Even  when  he  was  made  the  vic- 
tim of  an  overwhelming  denunciation  of  political  methods  and  party 
intriguers,  no  breath  ever  tarnished  his  fair  fame.  *  *  *  Qf  Judge 
Folger's  learning,  research,  wisdom  and  acuteness,  and  of  his  original 
and  peculiarly  forcible  and  felicitious  style  of  writing,  the  pages  of  our 
law  reports  bear  most  ample  witness." 

Charles  Andrews  was  appointed  chief  judge  upon  the  resig- 
nation of  Judge  Folger  in  1881.  In  1882  he  was  the  candidate 
of  the  Republican  party  for  the  office,  but  in  consequence  of  the 
factional  quarrels  of  his  party  that  year,  he  with  the  rest  of  his 
ticket,  was  defeated.  He  was  born  in  Whitestown,  N.  Y.,  May 
27,  1827,  admitted  to  the  bar  in  1849,  district  attorney  of  Onon- 
daga county  1853-56,  three  times  mayor  of  Syracuse  and  a  dele- 
gate at  large  to  the  constitutional  convention  of  1867.  He  was 
elected  associate  judge  of  the  court  of  appeals  in  1870.  At  the 
expiration  of  his  term  of  office  in  1884,  he  was  nominated  by  both 
parties  and  re-elected,  and  served  in  the  court  for  many  years 
with  great  industry  and  ability.  In  1892,  on  the  death  of  Chief 
Judge  Ruger,  he  was  nominated  by  both  parties  and  elected  chief 
judge  and  served  as  such  until  he  retired  January  i,  1898,  hav- 
ing reached  the  constitutional  age  limit.  He  is  still  living  in 
Syracuse  at  an  advanced  age,  venerated  and  respected  by  all. 

390 


HISTORY  OF  NEW  YORK 

William  Crawford  Ruger,  who  was  elected  chief  judge  in 
1882,  on  the  resignation  of  Judge  Folger,  was  a  lawyer  of  high 
rank.  He  was  born  in  Bridgewater,  Oneida  county,  January  30, 
1824,  admitted  to  the  bar  in  Utica  in  1853,  removed  to  Syracuse, 
where  he  practiced  his  profession  with  great  success  until  his 
election  as  chief  judge  in  1882  over  Judge  Andrews,  his  next 
door  neighbor.  He  presided  over  the  court  with  dignity  and 
patience,  and  wrote  very  voluminous  opinions  bearing  evidence 
of  great  research  and  careful  study.    He  died  January  14,  1892. 

Robert  Earl  succeeded  Judge  Ruger  as  chief  judge,  having 
been  promoted  by  Governor  Flower  to  the  vacancy  caused  by 
the  latter's  death,  and  served  as  such  until  the  age  limit  compelled 
him,  on  December  31,  1894,  to  retire  from  the  bench.  He  was 
chief  judge  of  the  old  court  of  appeals  at  the  time  it  was  dis- 
placed by  the  new  court  in  1870,  and  under  the  constitution  he 
became  a  member  of  the  commission  of  appeals  and  served  as 
such  until  it  concluded  its  work  on  July  i,  1875.  I^  November 
of  that  year  he  was  appointed  associate  judge  of  the  court  by 
Governor  Tilden  in  place  of  Martin  Grover  deceased.  In  the 
following  year  he  was  elected  for  a  full  term  and  reelected  in 
1890,  having  been  nominated  by  both  parties.  Before  serving 
in  the  court  of  appeals  he  had  been  surrogate  and  county  judge 
of  his  county.  He  was  born  in  Herkimer,  September  10,  1824, 
and  died  there  December  2,  1902.  No  man  better  equipped  for 
judicial  service  ever  sat  upon  the  bench.  He  had  a  remarkable 
memory  and  performed  a  vast  amount  of  work  with  apparent 
ease,  and  the  reports  of  the  court  are  illumined  by  a  great  number 
of  opinions  during  his  long  career  upon  the  bench,  covering  every 
branch  of  the  law,  which  testify  to  his  great  ability  and  untiring 
industry  as  a  judge. 

Alton    B.    Parker   was    elected   in    1897    to   succeed    Judge 

391 


LEGAL  AND  JUDICIAL 

Earl  as  chief  judge.  He  was  at  the  time  of  his  election  a  jus- 
tice of  the  supreme  court  for  the  Third  Judicial  District,  having 
been  appointed  by  Governor  Hill  to  that  position  in  1885  to  fill 
the  vacancy  caused  by  the  death  of  Justice  Theodric  R.  West- 
brook.  In  1882  he  was  elected  for  a  full  term.  While  a  justice 
of  the  supreme  court  he  served  four  years  as  associate  judge 
of  the  Second  Division  of  the  court  of  appeals,  three  years  as 
an  associate  justice  of  the  general  term  of  the  First  Depart- 
ment, and  for  six  months  as  a  member  of  the  appellate  division 
in  the  same  department.  From  1877  until  his  appointment  to  the 
supreme  court  he  was  surrogate  of  Ulster  county.  He  resigned 
his  great  office  of  chief  judge  in  1904  to  accept  the  nomination 
by  the  Democratic  party  as  its  candidate  for  President  of  the 
United  States.  He  dignified  the  office  of  chief  judge  and  left 
the  bench  with  the  sincere  regret  of  all  his  associates,  and  pos- 
sessing the  confidence  of  the  bar  and  the  people  in  his  judicial 
fairness  and  ability.  He  is  now  practicing  his  profession  in 
New  York  City.  In  1906  he  was  elected  president  of  the  Amer- 
ican Bar  Association.  He  was  born  near  Cortland,  New  York, 
May  12,  1852,  and  resides  at  Elsopus,  New  York. 

Edgar  M.  Cullen,  the  present  chief  judge,  was  born  in  Brook- 
lyn, New  York,  December  4,  1843.  He  was  graduated  from 
Columbia  College  in  i860,  and  admitted  to  the  bar  in  1867.  He 
was  a  volunteer  in  the  civil  war  and  rose  from  the  rank  of 
second  lieutenant  to  that  of  colonel  of  volunteers,  receiving  his 
commission  as  colonel  from  Governor  Morgan  at  the  age  of  19. 
He  practiced  law  in  Brooklyn  for  many  years  and  was  elected 
a  justice  of  the  supreme  court  in  1880  in  the  Second  Judicial 
District,  and  was  reelected  in  1894,  having  been  nominated  by 
both  parties.  While  serving  on  the  bench  of  the  supreme  court 
he  was  designated  by  Governor  Roosevelt,  January  i,  1900,  as 

392 


HISTORY  OF  NEW  YORK 

associate  judge  of  the  court  of  appeals.  On  the  resignation  of 
Judge  Parker  he  was  appointed  chief  judge  by  Governor  Odell, 
and  thereafter,  in  November,  1904,  was  elected  to  the  office.  He 
is  rounding  out  a  long  judicial  service  in  one  of  the  highest  ju- 
dicial stations  in  the  country,  and  measures  up  to  the  full  in  all 
the  qualities  essential  to  the  adornment  of  his  great  office. 

It  would  be  fitting  if  detailed  mention  could  be  made  of  all 
those  who  have  served  as  associate  judges  in  this  great  court,  for 
many  of  them  served  with  great  distinction  and  all  of  them 
worthily  filled  the  high  stations  to  which  they  were  called,  but 
the  limits  of  this  chapter   forbid. 

By  an  amendment  to  Section  6  of  Article  6  of  the  Constitu- 
tion adopted  November  8,  1888,  the  governor  was  authorized  to 
designate  seven  justices  of  the  supreme  court  to  act  as  associate 
judges  of  the  court  of  appeals  for  the  time  being,  and  to  form 
a  second  division  of  the  court  whenever  the  court  should  certify 
that  there  was  such  an  accumulation  of  causes  on  the  calendar 
that  the  public  interests  require  a  more  speedy  disposition  thereof. 
The  certificate  was  made  and  Governor  Hill  designated  the  fol- 
lowing justices  to  such  Second  Division: —  David  L.  Follett  of 
the  sixth  district,  George  B.  Bradley  of  the  seventh,  Joseph  Pot- 
ter of  the  fourth,  Irving  G.  Vann  of  the  fifth,  Albert  Haight  of 
the  eighth,  Alton  B.  Parker  of  the  third,  and  Charles  F.  Brown 
of  the  second.  They  organized  and  began  their  sessions  March 
5,  1889.  Under  the  authority  contained  in  the  amendment  they 
selected  David  L.  Follett  as  chief  judge.  On  November  28, 
1891,  Joseph  Potter  resigned  and  Judson  S.  Landon,  of  the 
fourth  district,  was  appointed  to  take  his  place.  They  finished 
the  work  assigned  to  them  in  1892,  and  the  Second  Division  then 
ceased  to  exist. 

393 


LEGAL  AND  JUDICIAL 

The  court  of  common  pleas  of  the  city  and  county  of  New 
York  was  one  of  the  oldest  courts  in  the  country.  After  an  ex- 
istence of  nearly  two  hundred  and  fifty  years  it  was,  on  January 
I,  1896,  consolidated  with  and  became  a  part  of  the  supreme 
court  of  the  State.  Its  history  has  been  well  written  by  Mr. 
James  Wilton  Brooks  of  the  New  York  Bar.*  To  his  valuable 
work  are  we  indebted  for  much  of  the  brief  summary  of  some  of 
its  later  history  which  we  give  here. 

By  act  of  the  legislature  in  1847  it  was  provided  that  the 
terms  of  the  judges  of  both  the  court  of  common  pleas  and  the 
superior  court  of  the  city  of  New  York  should  expire  in  Jan- 
uary, 1848,  that  thereafter  the  judges  should  be  elected  by  the 
people  for  terms  of  six  years,  but  that  at  the  first  election  in  June, 
1847,  the  term  should  be  for  two,  four  and  six  years.  In  the 
ensuing  election  all  the  existing  judges  of  the  court  of  common 
pleas  were  elected  and  the  allotment  of  terms  of  service  resulted 
as  follows:  Michael  UlshoeflFer,  two  years;  Daniel  P.  Ingra- 
ham,  four  years ;  and  Charles  P.  Daly,  six  years. 

From  1 82 1  until  the  time  of  its  disestablishment  in  1895  the 
court  of  common  pleas  was  presided  over  by  twenty-three  judges. 
During  that  period  there  were  four  first  judges — Irving,  Ulshoef- 
fer,  Ingraham  and  Charles  P.  Daly;  and  there  were  three  chief 
justices — Charles  P.  Daly,  Richard  L.  Larremore  and  Joseph  F. 
Daly.  Two  of  the  justices  died  while  they  were  holding  office, 
Robinson  in  1879  ^"d  Allen  in  1891.  Judge  Larremore  retired 
from  the  bench  in  1890  on  account  of  ill  health,  and  Chief  Justice 
Charles  P.  Daly  retired  on  account  of  age  at  the  end  of  his  sixth 
consecutive  term  of  service.  The  terms  of  service  of  the  justices 
were  as  follows:  Charles  P.  Daly,  forty-one  years;  Joseph  F. 
Daly,   twenty-five  years;    Daniel   P.    Ingraham,   twenty  years; 


♦"History  of  the  Court  of  Common  Pleas,  New  York,"  1896. 

394 


JOHN  T.   IRVING. 

(1778-1838). 

Jurist ;    elder  brother  of  Washington   Irving ;    Member  of 
Assembly ;   first  Judge  Court  of  Common  Pleas,  1821-1838. 


John  T.  Irving 


HISTORY  OF  NEW  YORK 

Richard  L.  Larremore,  twenty  years ;  John  T.  Irving,  seventeen 
years;  Michael  Ulshoeffer,  sixteen  years;  Miles  Beach,  sixteen 
years;  Charles  H.  Van  Brunt,  fourteen  years;  George  M.  Van 
Hoesen,  fourteen  years;  John  R.  Brady,  thirteen  years;  Henry 
W.  Bookstaver,  eleven  years ;  Hamilton  W.  Robinson,  nine  years ; 
Frederick  W.  Loew,  seven  years;  Henry  Wilder  Allen,  seven 
years ;  Lewis  B.  Woodruff,  six  years ;  Henry  Bischoff,  Jr.,  six 
years;  Roger  A.  Pryor,  six  years;  William  Inglis,  five  years; 
Henry  Hilton,  five  years ;  Albert  Cardozo,  five  years ;  Leonard 
A.  Giegerich,  five  years ;  Hooper  C.  Van  Vorst,  one  year ;  George 
C.  Barrett,  one  year.  Judges  Joseph  F.  Daly,  Beach,  Bookstaver, 
Bischoff,  Pryor  and  Giegerich  comprised  the  bench  when  the 
court  was  finally  dissolved.  It  has  been  well  said  of  this  court 
that  it  was 

"noted  from  the  fact  that  its  justices  have,  with  rare  exceptions,  been 
eminent  jurists,  and  that  every  noted  advocate  in  the  city  of  New  York 
has  appeared  at  its  bar.  The  original  roll  of  the  court  from  1821  to  1848 
during  which  period  every  aspirant  to  the  bar  of  the  city  of  New  York 
had  first  to  be  admitted  to  practice  in  the  common  pleas,  show  almost 
every  New  York  name  which  was  prominent  at  that  period  whether  in  the 
legal,  social  or  business  world."5 


Judge  Charles  P.  Daly,  whose  long  service  on  the  bench  of 
this  court  made  him  particularly  noteworthy,  was  a  native  of 
New  York  city,  where  he  was  born  in  October,  1816.  In  his  boy- 
hood he  was  occupied  as  a  clerk  in  a  mercantile  house  and  also 
went  to  sea  as  a  sailor  before  the  mast.  His  intelligent  qualities, 
however,  soon  asserted  themselves,  and  devoting  his  spare  hours 
to  study  he  made  such  progress  that  in  1839  he  was  admitted  to 
practice  at  the  bar.     In  1843  he  served  in  the  legislature  of  the 


5.    "History  of  the  Court  of  Common  Pleas  of  the  City  and  County  of 
New  York,"  by  James  Wilton  Brooks,  p.  28. 

395 


LEGAL  AND  JUDICIAL 

State,  and  had  he  so  desired  might  have  advanced  further  in  po- 
litical life.  His  appointment  to  the  bench  of  the  court  of  com- 
mon pleas  came  in  1844,  and  from  that  time  until  his  retirement 
in  1885  his  entire  career  was  bound  up  in  his  judicial  position. 
Appointed  to  the  office  in  the  first  instance,  he  was  elected  to  the 
same  position  for  five  times  after  the  constitution  made  the  office 
elective. 

His  services  to  the  public  were  not,  however,  confined  to 
his  duties  on  the  bench.  During  the  Civil  War,  although  a  Dem- 
ocrat, he  was  frequently  consulted  by  President  Lincoln  and  other 
leaders  of  the  national  cause,  and  his  advice  was  g^reatly  depended 
upon  in  many  instances.  As  a  man  of  letters  and  a  scientist  he 
also  won  reputation,  being  held  in  the  highest  esteem  by  such  men 
as  Lord  Brougham,  Freiherr  Von  Bunsen  and  Baron  Von  Hum- 
boldt. He  was  one  of  the  earliest  members  of  the  American 
Geographical  Society,  being  its  president  for  thirty-four  years, 
and  he  was  an  honorary  member  of  all  the  other  great  geograph- 
ical societies  of  the  world.  He  wrote  much  upon  legal,  scientific 
and  literary  subjects,  being  the  author  of  several  books  and  with 
essays,  addresses  and  articles  of  varied  and  important  character, 
a  contributor  to  current  publications.  He  died  in  September, 
1899. 

Upon  the  occasion  of  his  retirement  from  the  bench  of  the 
court  of  common  pleas,  a  meeting  of  the  bar  of  New  York  City 
was  held,  December  30,  1885,  a  tribute  to  him  from  his  profes- 
sional associates.  On  this  occasion,  speaking  to  the  resolutions 
which  were  offered,  William  Allen  Butler  said: 

"The  resolutions  fitly  emphasize  the  long  duration  of  his  term  of 
office  now  about  to  expire;    a  term  longer  by  ten  years  than  the  judicial 
life  of  Lord  Mansfield,  and  by  nearly  ten  years  that  of  Judge  Story.    * 
*    *    The  peculiar  feature  of  the  judicial  life  of  Chief  Justice  Daly  is 

396 


Charles  P.  Daly 


■tV.'. 


CHARLES  P.  DALY. 

(1816-1899). 

Jurist.;    Chief  Justice  Court  of  Common  Pleas;    President 
American   Geographical   Society. 


HISTORY  OF  NEW  YORK 

that  it  has  been  spent  in  this  single  sphere  of  duty,  within  the  limits  of  this 
city  and  the  precincts  of  this  court.  To  have  served  as  associate  judge, 
first  judge  and  chief  justice  of  the  court  of  common  pleas  for  the  city  and 
county  of  New  York  is  to  have  held  a  foremost  place  as  a  judicial  officer 
in  the  commercial  center  of  the  nation  during  the  most  eventful  of  our 
jurisprudence." 

The  court  of  common  pleas  was  in  many  respects  a  very  im- 
portant one.  Before  it  came  cases  of  forfeited  recognizances,  the 
great  part  of  lunacy  proceedings,  mechanics  Hens,  litigation  and 
insolvency  assignments.  Contested  wills  were  tried  by  it  before  a 
jury.  It  also  had  jurisdiction  over  domestic  corporations  doing 
business  in  New  York  and  over  foreign  corporations  upon  con- 
tracts that  were  made  in  the  state.  With  the  supreme  court  and 
the  superior  court,  it  had  nearly  all  the  naturalizing  of  voters  in 
the  county,  and  in  its  equity  powers  it  was  not  inferior  to  the  su- 
preme court.  Its  appellate  jurisdiction  extended  to  appeals 
from  its  own  decisions,  and  appeals  from  judgments  in  the 
city  courts  and  the  district  courts  of  New  York  city.  As  its  de- 
cisions were  final,  in  a  large  class  of  cases,  it  determined  the  law 
so  far  as  these  courts  were  concerned  on  all  matters  presenting 
questions  not  distinctly  adjudicated  by  the  court  of  last  resort. 
It  was  also  a  court  for  the  impeachment  of  municipal  and  minor 
judicial  ofiicers.  Among  the  cases  which  were  heard  and  decided 
by  it  in  its  last  named  capacity,  were  those  of  David  M.  Cow- 
drey,  in  1833;  Special  Justice  John  M.  Bloodgood,  in  1839; 
Special  Justice  Henry  W.  Merritt,  in  1840;  Special  Justice  Miln 
Parker,  in  1841 ;  Assistant  Justice  William  Wiley  and  Special 
Justices  George  W.  IMatzel,  Miln  Parker  and  Ephraim  Stevens, 
in  1842;  Dr.  Charles  H.  Jackson,  Justice  Gilbert,  James  B.  Green- 
man  and  Special  Justice  Ebenezer  Stevens,  in  1843  >  Special  Jus- 
tice Joseph  Haskell  and  William  Wain  Drinker,  in  1845  '>   Police 

397 


LEGAL  AND  JUDICIAL 

Clerk  John  B.  Hasty,  in  1846;  Police  Justice  Patrick  G.  Duffy,  in 
1887,  and  Police  Justice  Patrick  Diver  in  1894. 

From  182 1  to  1854  the  clerk  of  New  York  county  acted  as 
the  clerk  of  the  supreme  court  and  the  court  of  common  pleas. 
In  1854  the  legislature  passed  an  act  creating  a  clerk  of  the  court 
of  common  pleas  to  be  appointed  by  the  judges.  The  first  clerk 
under  this  act  was  Andrew  Warner,  who  served  for  only  one  year, 
and  who  later  in  life  was  president  of  the  Institution  for  the  Sav- 
ings of  Merchants'  Clerks.  Benjamin  H.  Jarvis  succeeded  An- 
drew Warner,  but  like  his  predecessor  retained  the  office  for  only 
one  year,  and  in  turn  was  succeeded  by  Nathaniel  Jarvis,  Jr.,  who 
served  until  1889,  when  he  resigned.  The  successor  of  Nathaniel 
Jarvis  was  Samuel  Jones,  who  retired  in  1892.  Finally  Alfred 
Wagstaff  became  clerk  of  the  court  in  1892  and  held  the  position 
until  1896,  when  the  court  ceased  to  exist;  he  then  became  clerk 
of  the  appellate  division  of  the  supreme  court  of  the  first  judicial 
department  of  the  State. 

The  court  ended  its  long  existence  December  31,  1895,  under 
the  provisions  of  the  Constitution  of  1894.  The  judges  who  were 
then  seated  upon  its  bench  became  justices  of  the  supreme  court. 

The  judges  and  associate  judges  of  this  court  from  the  time 
that  it  succeeded  the  mayor's  court  in  1821,  with  the  dates  of  their 
service,  until  the  court  was  abolished  in  1895,  were  as  follows: 

First  Judges:  John  T.  Irving,  182 1-1838;  Michael  Ulshoef- 
fer,  1 838- 1 849;  Daniel  P.  Ingraham,  1853- 1858;  Charles  P. 
Daly,  1 858- 1 87 1. 

Chief  Judges:  Charles  P.  Daly,  1871-1885;  Richard  L. 
Larremore,  1885-1890;  Joseph  F.  Daly,  1890-1895. 

Associate  Judges:  Michael  Ulshoeffer,  1834- 1838;  Daniel 
P.  Ingraham,  1838-1853;  William  Inglis,  1839-1844;  Charles  P. 
Daly,    1 844- 1 858;    Lewis   B.    Woodruff,    1850- 1856;    John   R. 

398 


HISTORY  OF  NEJ^F  YORK 

Brady,  1856-1869;  Henry  Hilton,  1858-1863;  Albert  Cardozo, 
1863-1868;  Hooper  C.  Van  Vorst,  1867-1868;  George  C.  Barrett, 
1868-1869;  Frederick  W.  Loew,  1869-75;  Charles  H.  Van 
Brunt,  1870-84;  Hamilton  W.  Robinson,  1870-9;  Richard  L. 
Larremore,  1870-1885;  Joseph  F.  Daly,  1870-1890;  George  M. 
Van  Hoesen,  1876-90;  Miles  Beach,  1879-95;  Henry  Wilder  Al- 
len, 1884-91;  Henry  W.  Bookstaver,  1885-95;  Henry  Bischoff, 
Jr.,  1890-95 ;  Roger  A.  Pryor,  1890-95 ;  Leonard  A.  Giegerich, 
1891-95. 

An  act  was  passed  in  1828  (Chap.  137)  to  establish  a  su- 
perior court  in  the  city  of  New  York.  In  the  fifty  years  prior  to 
that  time  the  population  of  the  city  had  increased  from  fifty 
thousand  to  two  hundred  thousand  people.  The  single  justice  of 
the  supreme  court  then  sitting  in  the  city,  even  with  the  help  of 
the  three  judges  then  serving  in  the  court  of  common  pleas,  was 
unable  to  promptly  dispose  of  the  rapidly  increasing  amount  of 
litigation  pressing  for  determination.  It  took  from  twelve  to 
fifteen  months  for  a  cause  to  be  reached  on  the  calendar  of  the 
supreme  court,  and  there  were  about  four  hundred  causes  on  it. 
Various  remedies  were  suggested  for  the  evil.  It  was  proposed 
to  enlarge  the  jurisdiction  of  the  court  of  common  pleas  and  to 
increase  the  number  of  its  judges  but  some  obstacles  were  in  the 
way.  After  much  consideration  it  was  finally  determined  to  ask  the 
legislature  to  establish  a  new  court  possessing  the  jurisdiction  of 
the  supreme  court  in  all  civil  cases.  In  response  to  this  request  the 
act  referred  to  was  passed.  Under  the  act  establishing  the  supe- 
rior court,  the  governor  with  the  consent  of  the  senate  was  auth- 
orized to  appoint  a  chief  justice  and  two  associate  justices  for 
the  term  of  five  years,  and  to  fill  vacancies  as  they  occurred.  The 
governor   appointed   Samuel  Jones,   the  then  chancellor  of   the 

399 


LEGAL  AND  JUDICIAL 

State,  as  chief  justice,  and  Josiah  Ogden  Hoffman  and  Thomas 
J.  Oakley,  each  of  whom  had  served  with  distinction  as  attorney 
general  of  the  State,  as  associate  justices.  The  Constitution  of 
1846  provided  that  all  judicial  officers  of  cities  as  well  as  those 
of  the  state  should  be  elected  instead  of  appointed.  The  number 
of  justices  of  the  court  was  increased  to  six,  by  Chap.  124,  Laws 
of  1848,  and  at  the  first  charter  election  under  that  act  in  1849 
three  additional  justices  for  the  court  were  chosen.  Since  that 
time,  until  the  court  was  abolished  by  the  Constitution  of  1894, 
the  court  consisted  of  the  chief  justice  and  five  associate  justices. 

Those  who  served  as  members  of  the  court  with  their  terms 
of  service  are  as  follows: 

Chief  Justices:  Samuel  Jones,  1828-1847;  Thomas  J.  Oak- 
ley, 1847-1857;  John  Duer,  1857-1858;  Joseph  S.  Bosworth, 
1858-1863;  Anthony  L.  Robertson,  1864-1869;  John  M.  Bar- 
bour, 1870-1873;  Claudius  L.  Monell,  1874-1876;  William  E. 
Curtis,  1876-1880;  John  Sedgwick,  1880-1896. 

Associate  Justices:  Josiah  Ogden  Hoffman,  1828-1837; 
Thomas  J.  Oakley,  1828-1847;  Aaron  Vanderpoel,  1842-1850; 
Lewis  H.  Sandford,  1849-1852;  John  Duer,  1849-1857;  John 
L.  Mason,  1849-1852;  William  W.  Campbell,  1849-1856;  Elijah 
Paine,  1850-1853;  Joseph  S.  Bosworth,  1852-1858;  Robert  Em- 
mett,  1852- ;  Murray  Hoffman,  1853-1861;  John  Slosson, 
1853-1859;  Lewis  B.  Woodruff,  1855-1861;  Edwards  Pierre- 
pont,  1857-1860;  James  Moncrief,  1859-1865;  Anthony  L.  Rob- 
ertson, 1859-1864;  James  W.  White,  1860-1863;  John  M.  Bar- 
bour, 1861-1870;  Claudius  L.  Monell,  1861-1874;  Samuel  B. 
Garvin,  1862- ;  John  H.  M'Cunn,  1862-1872;  Samuel  Jones, 
1866-72;  Freeman  J.  Fithian,  1869;  John  J.  Freedman,  1869- 
1875;  James  C.  Spencer,  1869- ;  William  E.  Curtis,  1872- 
1876;  John  Sedgwick,  1872-1880;   Hooper  C.  Van  Vorst,  1872- 

400 


HISTORY  OF  NEfV  YORK 

1886;  Gilbert  M.  Speir,  1873-1881 ;  Charles  F.  Sanford,  1876- 
1881 ;  John  J.  Freedman,  1876-1895;  Horace  Russell,  1880-1883; 
William  H.  Arnoux,  1882;  Richard  O.  Gorman,  1883;  George 
L.  Ingraham,  1883-1891  ;  Philip  H.  Dugro,  1887-1895;  David 
McAdam,  1890-1895;  Henry  A.  Gildersleeve,  1891-1895;  Henry 
R.  Beekman,  1895. 

The  supreme  court  of  New  York  may  well  rank  as  one  of  the 
oldest  institutions  in  the  State,  as  it  had  its  origin  nearly  a  hun- 
dred years  prior  to  the  Declaration  of  Independence.  Pursuant 
to  the  act  of  the  Provincial  Assembly  passed  May  6,  1691,  which 
established  the  court,  provision  was  made  for  the  appointment  of 
five  justices,  a  chief  justice  and  four  associates.  There  was  con- 
ferred upon  the  court  all  the  jurisdiction  at  law  exercised  by  the 
courts  of  Kings  Bench,  Common  Pleas  and  Exchequer  in  England. 
In  the  same  act  provision  was  made  for  a  High  Court  of  Chan- 
cery and  for  the  appointment  of  a  Chancellor. 

The  number  of  associate  justices  was  reduced  to  two  in  1701. 
Fifty-seven  years  thereafter,  in  1758,  another  justice  was  provided 
for,  making  four  in  all,  including  the  chief  justice.  The  court  as 
thus  constituted  continued  down  to  the  time  of  the  Revolutionary 
War.  The  Constitution  of  1777  did  not  in  express  terms  create 
or  continue  the  supreme  court  or  the  court  of  chancery.  It 
rather  treated  them  both  as  existing  tribunals  and  recognized 
them  as  entitled  to  exercise  the  same  powers  and  jurisdiction  un- 
der the  State  government  as  they  had  previously  exercised  under 
the  colonial.  The  supreme  court  was  composed  of  but  three  mem- 
bers, the  chief  justice  and  his  two  associates.  When  the  consti- 
tutional convention  of  1821  met  the  court  was  composed  of  the 
chief  justice  and  but  three  associates,  one  less  than  when  the  court 
was  first  organized  130  years  before,  although  the  State  had  then 

401 

28 


LEGAL  AND  JUDICIAL 

developed  into  a  commonwealth  with  53  counties  and  with  a 
population  of  nearly  a  million  and  a  half,  and  the  justices  were 
required  to  go  on  the  circuit  when  they  were  not  sitting  in  banc 
at  Albany,  Utica  or  New  York.  The  Constitution  of  1821  au- 
thorized the  legislature  to  divide  the  State  into  eight  circuits, 
and  for  the  appointment  of  a  circuit  judge  for  each,  having  the 
same  tenure  of  office  and  substantially  the  same  powers  as  the  jus- 
tices of  the  supreme  court  at  chambers  and  in  holding  circuit 
courts  and  courts  of  oyer  and  terminer.  In  1823  the  legislature 
divided  the  state  into  eight  circuits  corresponding  to  the  eight 
senate  districts  then  existing,  and  eight  circuit  judges  were  ap- 
pointed. The  circuit  courts  thus  constituted  were  continued  until 
the  changes  effected  under  the  Constitution  of  1846.  The  names 
of  those  who  held  the  office  of  circuit  judge  and  the  dates  of  their 
appointment  are  given  in  the  preceding  chapter. 

The  State  was  divided  under  the  Constitution  of  1846  into 
eight  judicial  districts,  the  office  of  circuit  judge  was  abolished, 
and  the  judicial  force  of  the  supreme  court  was  increased  by  the 
election  of  five  justices  in  the  New  York  district  and  four  in  each 
of  the  seven  other  districts,  making  thirty-three  in  all. 

The  justices  had  been  increased  in  number  from  time  to  time 
until  at  the  time  of  the  adoption  of  the  constitution  proposed  by 
the  convention  of  1894  there  were  forty-six  justices  in  the  State: 
seven  in  the  first  district,  six  in  the  second,  five  in  the  third,  five 
in  the  fourth,  six  in  the  fifth,  five  in  the  sixth,  six  in  the  seventh 
and  six  in  the  eighth. 

Under  that  constitution  the  superior  court  and  the  court 
of  common  pleas  of  New  York,  the  superior  court  and  the  city 
court  of  Brooklyn,  were  abolished  and  the  several  justices  of  these 
courts  transferred  to  the  supreme  court.  Provision  was 
also  made  for  the  election  of  twelve  additional  justices  through- 

402 


HISTORY  OF  NEW  YORK 

out  the  State,  so  that  with  the  i8  justices  of  the  abolished  courts 
transferred  to  it  and  the  election  of  the  12  new  justices  the  su- 
preme court  was  reenforced  by  thirty  new  members.  Pursuant  to 
legislation  enacted  in  1906  and  taking  effect  January  ist,  1907,  21 
additional  justices  were  provided  for,  so  that  the  judicial  force  of 
the  supreme  court  now  consists  of  97  justices.  These  are  di- 
vided among  the  judicial  districts  as  follows:  first  district,  30; 
second,  17;  third,  6;  fourth,  6;  fifth,  8;  sixth,  6;  seventh,  7; 
eighth,  12,  and  ninth,  5. 

Of  the  97  justices  24  are  now  (1910)  assigned  to  serve  in  the 
appellate  divisions,  7  in  each  of  the  first  and  second  departments 
and  5  in  each  of  the  third  and  fourth  departments  and  2  to  serve 
in  the  court  of  appeals. 

The  trial  and  special  terms  of  the  court  are  held  in  parts 
in  the  larger  cities  of  the  State,  the  business  having  increased 
to  such  an  extent  that  in  New  York  City  the  trial  term  is  held  in 
twenty  parts  and  the  special  term  in  eight,  and  in  Brooklyn  the 
trial  term  is  held  in  seven  parts  and  the  special  term  in  two,  all 
sitting  at  the  same  time. 

It  is  curious  to  note  the  contrast  between  these  conditions 
and  those  existing  at  the  time  the  Provincial  Assembly  passed  the 
act  creating  the  supreme  court  in  1691,  as  indicated  by  a  single 
expression  in  that  act:  "The  justices", — so  declares  the  act — 
"must  hold  a  term  once  every  six  months  and  noe  oftener,  on  the 
first  Tuesday  of  October  and  the  first  Tuesday  of  April 
annually  at  the  city  hall  in  the  city  of  New  York,  provided  they 
shall  not  sit  longer  than  eight  dayes." 

Following  is  a  list  of  the  justices  of  the  supreme  court  after 
1847  with  the  dates  of  their  election  or  appointment : 

First  District:  Samuel  Jones,  1847;  Elisha  P.  Hurlbut, 
1847 ;  John  W.  Edmonds,  1847  >  Henry  P.  Edwards,  1847  J  Wil- 

403 


LEGAL  AND  JUDICIAL 

liam  Mitchell,  1849;  James  G.  Kings,  Jr.,  185 1 ;  James  J.  Roose- 
velt, 1851;  Robert  H.  Morris,  1852;  Thomas  W.  Gierke,  1853; 
Edward  P.  Cowles,  1855  ;  Henry  E.  Davies,  1855  ;  James  R.  Whit- 
ing, 1855;  Gharles  A.  Peabody,  1855;  Daniel  P.  Ingraham,  1857; 
Josiah  Sutherland,  1857;  William  H.  Leonard,  1859;  Benjamin 
W.  Bonney,  i860;  George  G.  Barnard,  i860;  Thomas  W.  Gierke, 
1861 ;  Josiah  Sutherland,  1863 ;  Daniel  P.  Ingraham,  1865 ;  Al- 
bert Cardozo,  1867;  George  G.  Barnard,  1868;  John  R.  Brady, 
1869;  George  C.  Barrett,  1871 ;  William  H.  Leonard,  1872;  Enoch 
L.  Fancher,  1872 ;  Noah  Davis,  1872 ;  Abraham  R.  Lawrence, 
1873;  Charles  Donohue,  1873;  John  R.  Brady,  1877;  George  P. 
Andrews,  1883 ;  Charles  H.  Van  Brunt,  1883 ;  George  C.  Barrett, 
1885;  Edward  Patterson,  1886;  Morgan  J.  O'Brien,  1887;  Abra- 
ham R.  Lawrence,  1887 ;  George  L.  Ingraham,  1891 ;  Charles  H. 
Truax.  1895 ;  Frederick  Smyth,  1895 ;  Charles  F.  Mac  Lean, 
1895;  John  Sedg\vick,  1896;*  P.  Henry  Dugro,  1896;*  John  J. 
Freedman,  1896;*  David  McAdam,  1896;*  Henry  A.  Gildersleeve, 
1896;*  Henry  R.  Beekman,  1896;*  Joseph  F.  Daly,  1896  ;§  Henry 
W.  Bookstaver,  1896  ;§  Henry  Bischoff,  Jr.,  1896;^  Roger  A. 
Pryor,  1896  ;§Leonard  A.  Giegerich,  1896  ;§  Miles  Beach,  1896  ;§ 
William  N.  Cohen,  1897;  Charles  H.  Van  Brunt,  1897;  Francis 
M.  Scott,  1897;  James  Fitzgerald,  1898;  George  P.  Andrews, 
1898;  David  Leventritt,  1898;  George  C.  Barrett,  1899;  James 
A.  O'Gorman,  1899;  James  A.  Blanchard,  1900;  Edward  Patter- 
son, 1900;  Philip  Henry  Dugro,  1900;  John  Proctor  Clarke,  1900; 
Morgan  J.  O'Brien,  1901 ;  Samuel  Greenbaum,  1901 ;  Alfred  Steck- 


*Judge  of  the  former  superior  court  of  the  City  of  New  York,  who 
became  a  justice  of  the  supreme  court  on  January  i,  1896,  for  the  re- 
mainder of  his  term,  by  virtue  of  Sec.  5,  title  VI,  of  the  Constitution. 

§Judge  of  the  former  court  of  common  pleas  of  the  City  and  County 
of  New  York,  who  became  a  justice  of  the  supreme  court,  on  January  i. 
1896,  for  the  remainder  of  his  term,  by  virtue  of  Sec.  5,  title  VI,  of  the 
Constitution. 

404 


HISTOR  Y  OF  NEW  YORK 

ler,  1901  ;  Ernest  Hall,  1902;  William  A.  Keener,  1902;  Edward 

E.  McCall,  1902;  Edward  B.  Amend,  1902;  Vernon  M.  Davis, 
1902;  Henry  Bischoff,  1903;  Victor  J.  Dowling,  1904;  Mortimer 
C.  Addoms,  1905 ;  George  L.  Ingraham,  1905 ;  Henry  A.  Gilder- 
sleeve,  1905  ;  Joseph  E.  Newburger,  1905  ;  Edward  S.  Clinch,  1905  ; 
Matthew  Linn  Bruce,  1906;  Leonard  A.  Giegerich,  1906;  John  W. 
Goff,  1906;  Samuel  Seabury,  1906;  M.  Warley  Platzek,  1906;  Pe- 
ter A.Hendrick,  1906;  John  Ford,  1906;  Charles  W.  Dayton,  1906; 
John  J.  Brady,  1906;  Mitchell  L.  Erlanger,  1906;  Charles  L.  Guy, 
1906;  James  W.  Gerard,  1907;  Matthew  Linn  Bruce,  1908;  Irv- 
ing Lehman,  1908;  Edward  B.  Whitney,  1909;  Nathan  Bijur, 
1909;  Edward  J.  Gavegan,  1909;  Alfred  Page,  1909. 

Second  District:  Selah  B.  Strong,  1847;  William  T.  Mc- 
Coun,  1847;  Nathan  B.  Morse,  1847;  Seward  Barculo,  1847;  John 
W.  Brown,  1849;  Selah  B.  Strong,  1851 ;  William  Rockwell,  1854; 
Gilbert  Dean,  1854;  James  Emott,  1855;  Lucien  Birdseye,  1856; 
John  W.  Brown,  1857 ;  John  A.  Lott,  1857 ;  William  W.  Scrug- 
ham,  1859;  John  A.  Lott,  1861  ;  Joseph  F.  Barnard,  1863;  Jasper 
W.  Gilbert,  1865  :  William  Fullerton,  1867  :  Stephen  W.  Fullerton, 
1867;  Abraham  B.  Tappen,  1867;  Calvin  E.  Pratt,  1869;  Joseph 

F.  Barnard,  1871 ;  Jasper  W.  Gilbert,  1873 ;  Jackson  O.  Dykman, 
1875;  Calvin  E.  Pratt,  1877;  Erastus  Cooke,  1880;  Edgar  M. 
Cullen,  1880;  Charles  F.  Brown,  1882;  Willard  Bartlett,  1883; 
Joseph  F.  Barnard,  1885;  Jackson  O.  Dykman,  1889;  Calvin  E. 
Pratt,  1891;  William  J.  Gaynor,  1893;  Edgar  I\L  Cullen,  1894; 
Martin  J.  Keogh,  1895;  Wilmot  M.  Smith,  1895;  William  D. 
Dickey,  1895;  Augustus  Van  Wyck,  1896;*  Nathaniel  H.  Clem- 
ent, 1896;*    William  J.  Osborne,  1896;*    William  W.  Goodrich, 


*Judge  of  the  former  City  Court  of  Brooklyn,  who  became  a  justice 
of  the  supreme  court  on  January  ist,  1896.  for  the  remainder  of  his 
term,  by  virtue  of  Sec.  5,  title  VI,  of  the  Constitution. 


LEGAL  AND  JUDICIAL 

1896;  Garret  J.  Garretson,  1896;  Michael  H.  Hirshberg,  1896; 
Samuel  T.  Maddox,  1896;  Jesse  Johnson,  1897;  Willard  Bart- 
lett,  1897;  Frederick  A.  Ward,  1898;  Almet  F.  Jenks,  1898;  Jo- 
siah  T.  Marean,  1898;  William  J.  Kelly,  1903;  Joseph  A.  Burr, 
1904;  Walter  H.  Jaycox,  1906;  Edward  B.  Thomas,  1906;  Joseph 
Aspinall,  1906;  Frederick  E.  Crane,  1906;  Lester  W.  Clark,  1906; 
George  B.  Abbott,  1906;  William  J.  Carr,  1906;  Townsend  Scud- 
der,  1906;  William  J.  Gaynor,  1907;  Abel  E.  Blackmar,  1908; 
Luke  D.  Stapleton,  1908;  Harrington  Putnam,  1909;  Isaac  M. 
Kapper,  1909. 

Third  District:  Ira  Harris,  1847;  Malbone  Watson,  1847; 
Amasa  J.  Parker,  1847;  William  B.  Wright,  1847;  Ira  Harris, 
1851 ;  Malbone  Watson,  1853;  George  Gould,  1855;  Deodatus 
Wright,  i857;Henry  Hogeboom,  1857;  William  B.  Wright,  1859; 
Rufus  W.  Peckham,  1861 ;  Theodore  Miller,  1861 ;  Charles  R.  In- 
galls,  1863;  Henry  Hogeboom,  1865;  Theodore  Miller,  1869; 
William  L.  Learned,  1869;  Charles  R.  Ingalls,  1871 ;  Peter  S. 
Danforth,  1872;  Theodoric  R.  Westbrook,  1873;  Austin  Melvin 
Osborn,  1875;  Rufus  W.  Peckham,  1883;  William  L.  Learned, 
1884;  Alton  B.  Parker,  1885;  Charles  R.  Ingalls,  1885;  Samuel 
Edwards,  1887;  Stephen  L.  Mayham,  1887;  Edgar  L.  Fursman, 
1889;  D.  Cady  Herrick,  1891 ;  Alden  Chester,  1895;  Emory  A. 
Chase,  1896;  Alphonso  T.  Clearwater,  1898;  James  A.  Betts, 
1898;  Aaron  V.  S.  Cochrane,  1901 ;  Wesley  O.  Howard,  1902; 
Gilbert  D.  B.  Hasbrouck,  1904;  George  H.  Fitts,  1905;  Alden 
Chester,  1909;   Randall  J.  Le  Boeuf,  1909. 

Fourth  District:  Daniel  Cady,  1847;  Alonzo  C.  Paige,  1847; 
John  Willard,  1847;  Augustus  C.  Hand,  1847;  Daniel  Cady, 
1849;  Cornelius  L.  Allen,  185 1 ;  Amaziah  B.  James,  1853;  Augus- 
tus Bockes,  1855  ;  Alonzo  C.  Paige,  1855 ;  Enoch  H.  Rosekrans, 
1855;  Piatt  Potter,  1857;  Augustus  Bockes,  1859;  Amaziah  B. 

406 


HISTOR  Y  OF  NEfV  YORK 

James,  1861 ;  Piatt  Potter,  1865;  Augustus  Bockes,  1867;  Ama- 
ziah  B.  James,  1869;  Joseph  Potter,  187 1 ;  Judson  S.  Landon, 
1873;  Augustus  Bockes,  1875 ;  William  H.  Sawyer,  1876;  Charles 
O.  Tappan,  1877;  Frothingham  Fish,  1883;  Joseph  Potter,  1885; 
Judson  S.  Landon,  1887;  John  R.  Putnam,  1887;  S.  Alonzo  Kel- 
logg, 1890;  Leslie  W.  Russell,  189 1 ;  Martin  L.  Stover,  1891; 
Chester  B.  McLaughlin,  1895;  James  W.  Houghton,  1899;  Edgar 
A.  Spencer,  1901 ;  John  M.  Kellogg,  1902;  Henry  T.  Kellogg, 
1903;  Charles  C.  Van  Kirk,  1905;  Chester  B.  McLaughlin,  1909. 

Fifth  District:  Charles  Gray,  1847;  Daniel  Pratt,  1847; 
Philo  Gridley,  1847;  William  E.  Allen,  1847;  Frederick  W.  Hub- 
bard, 1849;  Daniel  Pratt,  1851 ;  William  J.  Bacon,  1853;  William 
F.  Allen,  1855;  Joseph  Mullen,  1857;  LeRoy  Morgan,  1859;  Wil- 
liam J.  Bacon,  1861 ;  Henry  A.  Foster,  1863 ;  Joseph  Mullen, 
1865 ;  LeRoy  Morgan,  1867 ;  Charles  H.  Doolittle,  1869 ;  George 
A.  Hardin,  1871 ;  Joseph  Mullen,  1873;  Milton  H.  Merwin,  1874; 
James  Noxon,  1875 ;  John  C.  Churchill,  1881 ;  Irving  G.  Vann, 
1881 ;  George  N.  Kennedy,  1883 ;  Pardon  C.  Williams,  1883 ; 
George  A.  Hardin,  1885;  Milton  H.  Merwin,  1888;  Maurice  L. 
Wright,  1891 ;  Peter  B.  McLennan,  1892 ;  Irving  G.  Vann,  1895 ; 
William  E.  Scripture,  1895;  Frank  H.  Hiscock,  1896;  Pardon  C. 
Williams,  1897;  William  S.  Andrews,  1899;  Watson  M.  Rogers, 
1902;  Irving  R.  Devendorf,  1905;  Peter  B.  McLennan,  1906;  Pas- 
cal C.  J.  De  Angelis,  1906;  Edgar  S.  K.  Merrill,  1909. 

Sixth  District:  William  H.  Shankland,  1847;  Hiram  Gray, 
1847;  Charles  Mason,  1847;  Eben  B.  Morehouse,  1847;  William 
H.  Shankland,  1849;  Schuyler  Crippen,  1850;  Levinus  Monson, 
1850;  Hiram  Gray,  1851 ;  Charles  Mason,  1853;  Ransom  Balcom, 
1855  ;  William  W.  Campbell,  1857 ;  John  M.  Parker,  1859 ;  Charles 
Mason,  1861 ;  Ransom  Balcom,  1863;  Douglas  Board- 
man,     1865;    John    M.    Parker,    1867;    WiUiam    Murray,    Jr., 

407 


LEGAL  AND  JUDICIAL 

1867;  Ransom  Balcom,  1871 ;  Edwin  Countryman,  1873; 
Douglas  Boardman,  1873;  David  L.  Follett,  1874;  William 
Murray,  1877;  Celora  E.  Martin,  1877;  H.  Boardman  Smith, 
1883;  Francis  R.  Gilbert.  1887;  Charles  E.  Parker,  1887;  Ger- 
rit  A.  Forbes,  1887 ;  David  L.  Follett,  1888 ;  Walter  Lloyd  Smith, 
1888 ;  Celora  E.  Martin,  1891 ;  Burr  Mattice,  1895 ;  George  F, 
Lyon,  1895;  Albert  H.  Sewell,  1899;  Charles  E.  Parker,  1901 ; 
Gerrit  A.  Forbes,  1901 ;  Walter  Lloyd  Smith,  1902 ;  Nathan  L. 
Miller,  1903;  Albert  F.  Gladding,  1906;  Henry  B.  Coman,  1906; 
George  F,  Lyon,  1909. 

Seventh  District :  Thomas  A.  Johnson,  1847 ;  John  May- 
nard,  1847;  Henry  Welles,  1847;  Samuel  L.  Seldon,  1847; 
Thomas  A.  Johnson,  1849;  Henry  W.  Taylor,  1850;  Theron  R. 
Strong,  1851 ;  Henry  Welles,  1853;  E.  Darwin  Smith,  1855; 
Thomas  A.  Johnson,  1857;  Addison  T.  Knox,  1859;  Henry 
Welles,  1861  ;  James  C.  Smith,  1862 ;  E.  Darwin  Smith,  1863 ; 
Thomas  A.  Johnson,  1865;  James  C.  Smith,  1867;  Charles  C. 
Dwight,  1868;  E.  Darwin  Smith,  1871 ;  David  Rumsey,  1873; 
James  C.  Smith,  1875;  George  W.  Rawson,  1876;  Charles  C. 
Dwight,  1877 ;  James  L.  Angell,  1877 ;  Francis  A.  Macomber. 
1878;  William  Rumsey,  1880;  George  B.  Bradley,  1883;  William 
H.  Adams,  1887;  John  M.  Davy,  1888;  Charles  C  Dwight,  1891 ; 
Francis  A.  Macomber,  1892 ;  George  F.  Yeoman,  1893 ;  William 
Rumsey,  1894;  William  E.  Werner,  1894;  James  W.  Dunwell, 
1895;  Edwin  A.  Nash,  1895;  Adelbert  P.  Rich,  1900;  John  F. 
Parkhurst,  1901 ;  William  H.  Adams,  1901 ;  John  M.  Davy,  1902; 
James  A.  Robson,  1903  ;  Nathaniel  Foote,  1905  ;  Arthur  E.  Suther- 
land, 1905;  William  W.  Clark,  1906;  George  A.  Benton,  1907; 
Samuel  N.  Sawyer,  1907. 

Eighth  District:  James  G.  Hoyt,  1847;  James  Mullet,  1847; 
Seth  E.  Sill,   1847 ;  Richard  P.  Marvin,   1847 ;  James  G.  Hoyt, 

408 


HISTORY  OF  NEW  YORK 

1849;  Moses  Taggart,  1851  ;  James  Mullet,  185 1 ;  Levi  F.  Bowen, 
1852;  Benjamin  F.  Green,  1853;  Richard  P.  Marvin,  1855;  Noah 
Davis,  Jr.,   1857;  Martin  Grover,   1857;  James  G.  Hoyt,   i860; 
Charles  Daniels,  1863;  Richard  P.  Marvin,  1863;  Noah  Davis, 
Jr.,  1865;  George  Barker,  1867;  George  D.  Lament,  l868;  John 
L.  Talcott,  1869;  Charles  Daniels,  1869;  George  D.  Lamont,  1871 ; 
John  L.  Talcott,  1873;  George  Barker,  1875;  William  H.  Hen- 
derson, 1876 ;  Albert  Haight,  1876 ;  Charles  Daniels,  1877 ;  Loran 
L.  Lewis,  1882 ;  Thomas  Corlett,  1883 ;  Henry  A.  Childs,  1883 
John  S.  Lambert,  1889;  Albert  Haight,  1890;  jNIanley  C.  Green 
1891  ;  Hamilton  Ward,   1891 ;  Alfred   Spring,   1895;   Frank   C 
Laughlin,  1895  ;  Edward  W.  Hatch,  1895  ;  John  Woodward,  1896 
Robert  C.  Titus,   1896;*  Truman  C.  White,   1896;*   Henry  A 
Childs,  1897;  Warren  B.  Hooker,  1898;  Daniel  B.  Kenefick,  1898 
Frederick  W.  Kruse,  1899;  Truman  C.  White,  1899;  Daniel  J 
Kenefick,  1899 ;  John  S.  Lambert,  1903 ;  Louis  W.  Marcus,  1905 
Cuthbert  W.  Pound,  1906;  Charles  B.  Wheeler,  1906;  Louis  W 
Marcus,  1906;  Edward  K.  Emery,  1906;  Charles  H.  Brown,  1906 
Frank  C.  Laughlin,  1909;  Alfred  Spring,  1909. 

Ninth  District :  Martin  J.  Keogh,  1895  ;§  Michael  H.  Hirsch- 
berg.  1896  ;<§,  Isaac  N.  Mills,  1906;  Arthur  S.  Tompkins,  1906; 
Joseph  Morschauser,  1906;  Martin  J.  Keogh,  1909. 

Provision  was  made  under  the  Constitution  of  1846  to  divide 
the  State  into  eight  judicial  districts,  for  a  general  term  of  the 
supreme  court  in  each  of  the  districts,  and  for  the  designation 
of  one  of  the  justices  in  each  district  as  the  presiding  judge.  This 
division  of  the  state  and  the  creation  of  these  general  terms,  each 


*Judge  of  the  former  Superior  Court  of  Buffalo,  who  became  a  jus- 
tice of  the  supreme  court  on  January  ist,  1896,  for  the  remainder  of  his 
term,  by  virtue  of  Sec.  5,  title  VI,  of  the  Constitution. 

§Justice  elected  in  Second  District  and  continued  as  justice  in  Ninth 
District  pursuant  to  Chap.  294,  Laws  of  1906. 

409 


LEGAL  AND  JUDICIAL 

with  a  presiding  justice  rendered  the  further  selection  of  a  chief 
justice  of  the  State  unnecessary  and  since  that  time  the  supreme 
court  has  had  no  such  officer. 

By  an  amendment  to  the  judiciary  article  of  the  Constitu- 
tion, adopted  in  1867,  the  number  of  the  general  terms  was  re- 
duced from  8  to  4.  The  legislature  by  Chapter  408,  Laws  of 
1870,  divided  the  State  into  four  departments.  The  number  was 
increased  to  five  by  Chapter  329,  Laws  of  1883,  and  this  divi- 
sion remained  until  the  Constitution  of  1894  again  required  the 
number  of  the  departments  to  be  reduced  to  four. 

During  the  time  the  State  was  divided  into  five  departments 
they  were  made  up  as  follows : 

I.     First  District. 


Second  District. 
Third  and  Fourth  Districts. 
Fifth  and  Sixth  Districts. 
Seventh  and  Eighth  Districts. 
The  eight  judicial  districts  first  erected  under  the  Constitu- 
tion of  1846  remained  without  substantial  change  except  those 
made  necessary  by  the  erection  of  new  counties  and  by  some 
changes  in  the  boundary  of  counties,  until  1906,  when  the  second 
district  was  subdivided  and  the  ninth  district  was  created  out  of 
a  portion  of  it.     (Chap.  294,  Laws  1906.) 

The  judicial  districts  and  departments  as  now  existing  under 
the  judiciary  law  (Sections  70  and  140,  Chap.  35,  Consolidated 
Laws  1909)  are  as  follows: 
Districts : 

1.  County  of  New  York; 

2.  Counties  of  Kings,  Nassau,  Queens,  Richmond  and  Suf- 
folk; 

410 


HISTORY  OF  NEW  YORK 

3.  Counties  of  Columbia,  Sullivan,  Ulster,  Greene,  Albany, 
Schoharie  and  Rensselaer; 

4.  Counties  of  Warren,  Saratoga,  Washington,  Essex, 
Franklin,  St.  Lawrence,  Clinton,  Montgomery,  Hamilton,  Fulton, 
and  Schenectady; 

5.  Counties  of  Onondaga,  Oneida,  Oswego,  Herkimer,  Jef- 
ferson and  Lewis; 

6.  Counties  of  Otsego,  Delaware,  Madison,  Chenango, 
Broome,  Tioga,  Chemung,  Tompkins,  Cortland  and  Schuyler; 

7.  Counties  of  Livingston,  Wayne,  Seneca,  Yates,  Ontario, 
Steuben,  Monroe  and  Cayuga; 

8.  Counties  of  Erie,  Chatauqua,  Cattaraugus,  Orleans,  Ni- 
agara, Genesee,  Allegany  and  Wyoming; 

9.  Counties  of  Westchester,  Putnam,  Dutchess,  Orange,  and 
Rockland. 

Departments : 

1.  County  of  New  York; 

2.  Counties  in  the  second  and  ninth  districts ; 

3.  Counties  in  the  third,  fourth  and  sixth  districts ; 

4.  Counties  in  the  fifth,  seventh  and  eighth  districts. 

Following  is  a  list  of  the  presiding  and  associate  justices 
serving  in  the  General  Terms  from  1870  to  December  31,  1895. 

First  Department. 

Presiding  Justices :  Daniel  P.  Ingraham,  Noah  Davis, 
Charles  H.  Van  Brunt. 

Associate  Justices :  Albert  Cardozo,  George  G.  Barnard,  Wil- 
liam H.  Leonard,  Noah  Davis,  Enoch  L.  Fancher,  John  R.  Brady, 
Charles  Daniels,  Charles  R.  Ingalls,  George  C.  Barrett,  Willard 
Bartlett,  Morgan  J.  O'Brien,  David  L.  Follett  and  Alton  B.  Parker. 

411 


LEGAL  AND  JUDICIAL 

Second  Department. 

Presiding  Justices :  Joseph  F.  Barnard,  and  Charles  F.  Brown. 

Associate  Justices :  Jasper  W.  Gilbert,  Abraham  B.  Tappen, 
Jackson  O.  Dykman,  Charles  F.  Brown  and  Calvin  E.  Pratt. 

Third  Department. 

Presiding  Justices:  Theodore  Miller,  William  L.  Learned, 
and  Stephen  C.  Mayham, 

Associate  Justices:  Piatt  Potter,  John  M.  Parker,  Augus- 
tus Bockes,  Douglass  Boardman,  Judson  S.  Landon,  Charles  R. 
Ingalls,  Stephen  L.  Mayham,  D.  Cady  Herrick  and  John  R.  Put- 
nam. 

Fourth  Department. 

Presiding  Justices :  Joseph  Mullen,  John  L.  Talcott,  James 
C.  Smith  and  George  A.  Hardin. 

Associate  Justices :  Thomas  A.  Johnson,  John  L.  Talcott,  E. 
Darwin  Smith,  James  C.  Smith,  George  A.  Hardin,  Loran  L. 
Lewis,  George  Barker,  David  L.  Follett,  Douglass  Boardman, 
Celora  E.  Martin  and  Milton  H.  Merwin. 

Fifth  Department,  from  1884  to  December  31,  1895. 

Presiding  Justices :  James  C.  Smith,  George  Barker  and 
Charles  C.  Dwight. 

Associate  Justices:  George  Barker,  George  B.  Bradley,  Al- 
bert Haight,  Charles  C.  Dwight,  F.  A.  Macomber,  Thomas  Cor- 
lett,  Loran  L.  Lewis  and  Hamilton  Ward. 

The  general  terms  were  superseded  under  the  Constitution 
of  1894  by  the  appellate  divisions  of  the  supreme  court.  The 
State  was  divided  into  four  departments  as  before  stated,  with  an 
appellate  division  in  each  consisting  of  seven  justices  in  the 
first,  and  five  in  each  of  the  others.  It  requires  four  justices  to 
constitute  a  quorum  and  the  concurrence  of  three  to  render  a 
decision.     No  more  than  five  justices  can  sit  in  any  case.     The 

412 


HISTORY  OF  NEW  YORK 

governor  designates  the  justices  who  shall  constitute  the  appellate 
divisions  and  also  the  presiding  justice  who  shall  act  as  such 
during  his  term  of  office.  The  associate  justices  are  designated 
for  terms  of  five  years  or  for  the  unexpired  portions  of  their  re- 
spective terms  of  office,  if  less  than  five  years. 

Following  are  the  justices  who  have  served  in  the  Appellate 
Divisions  and  the  dates  of  their  designation : 

First  Department. 

Presiding  Justices :  Charles  H.  Van  Brunt,  1895 ;  redesig- 
nated 1897;  Morgan  J.  O'Brien,  1905;  Edward  Patterson,  1906, 
and  George  L.  Ingraham,  1910. 

Associate  Justices :  George  C.  Barrett,  1895 ;  George  L.  In- 
graham, 1895  ;  Edward  Patterson,  1895  ;  Morgan  J.  O'Brien,  1895  ; 
Charles  C.  Dwight,  1895 ;  Pardon  C.  Williams,  1895 ;  William 
Rumsey,  1895 ;  Alton  B.  Parker,  1897 ;  Chester  B.  McLaughlin, 
1897;  George  C.  Barrett,  redesignated  1899;  Edward  W.  Hatch, 
19CX5;  George  L.  Ingraham  redesignated  1901 ;  Edward  Patterson 
redesignated  1901 ;  Morgan  J.  O'Brien  redesignated  1901 ;  Frank 
C.  Laughlin  1901 ;  Chester  B.  McLaughlin  redesignated  1902;  Ed- 
ward W.  Hatch  redesignated  1905 ;  John  Proctor  Clarke,  1905 ; 
James  \\'.  Houghton,  1905 ;  George  L.  Ingraham  redesignated 
1905;  Edward  Patterson  redesignated  1905;  Frank  C.  Laughlin 
redesignated  1906;  Francis  M.  Scott,  1906;  John  S.  Lambert 
temporary  1906;  Chester  B.  McLaughlin  redesignated  1907  and 
1909;  Frank  C.  Laughlin  redesignated  1909;  Victor  J.  Dowling, 
1910;  Nathan  L.  ^Miller,  1910. 

Second  Department. 

Presiding  Justices :  Charles  F.  Brown,  1895 ;  William  W. 
Goodrich,  1897 ;  Michael  H.  Hirschberg,  1903. 

Associate  Justices  :  Edgar  M.  Cullen,  1895  ;  Calvin  E.  Pratt, 
1895;  Willard  Bartlett,  1895;  Edward  W.  Hatch,  1896;  George 

413 


LEGAL  AND  JUDICIAL 

B.  Bradley,  1896;  Willard  Bartlett,  redesignated  1897;  John 
Woodward,  1897 ;  Michael  H.  Hirschberg,  1900 ;  Almet  F.  Jenks, 
1900;  Albert  H.  Sewell  temporary  1901 ;  Warren  B.  Hooker, 
temporary  1902;  Willard  Bartlett,  redesignated  1902;  John 
Woodward,  redesignated  1902 ;  Warren  B.  Hooker,  1903 ;  Adel- 
bert  P.  Rich,  temporary  1904;  Nathan  L.  Miller,  temporary 
1904 ;  Almet  F.  Jenks,  redesignated  1905 ;  William  J.  Gaynor, 
1906,  redesignated  1908;  John  Woodward,  redesignated  1908; 
Joseph  A.  Burr,  1908;  Edward  B.  Thomas,  1909;  William  J. 
Carr,  1910. 

Presiding  Justices :  Charles  E.  Parker,  1895 ;  redesignated 
1901 ;  Waher  Lloyd  Smith,  1907, 

Associate  Justices :  D.  Cady  Herrick,  1895 ;  Judson  S.  Lan- 
don,  1895 ;  John  R.  Putnam,  1895 ;  Milton  H.  Merwin,  1895 ; 
Samuel  Edwards,  temporary  1896;  S.  Alonzo  Kellogg,  temporary 
1899;  Walter  Lloyd  Smith,  1899;  S.  Alonzo  Kellogg,  1900;  Sam- 
uel Edwards,  1900;  Emory  A.  Chase,  1901 ;  Edgar  L.  Fursman,. 
1901 ;  Alden  Chester,  1902 ;  Walter  Lloyd  Smith,  redesignated 
1902;  George  F.  Lyon,  temporary  1903;  James  W.  Houghton, 
1903 ;  John  M.  Kellogg,  1905 ;  Aaron  V.  S.  Cochrane,  1905 ;  Al- 
bert H.  Sewell,  1907;  Henry  B.  Coman,  temporary  1907;  Alden 
Chester,  redesignated,  1907 ;  James  W.  Houghton,  1909. 

Fourth  Department. 

Presiding  Justices :  George  A.  Hardin,  1895 ;  William  H. 
Adams,  1899;  Peter  B.  McLennan,  1903;  redesignated  1907. 

Associate  Justices :  William  Rumsey,  1895 ;  David  L.  Fol- 
lett,  1895;  William  H.  Adams,  1895;  Manley  C.  Green,  1895; 
Hamilton  Ward,  1896;  Peter  B.  McLennan,  1898;  Alfred  Spring, 
1899;  Edwin  A.  Nash,  temporary,  1899;  Walter  Lloyd  Smith,. 
1899;  Frank  C.  Laughlin,  1900;  Pardon  C.  Williams,  1900;  Wil- 
liam Rumsey,  redesignated  1901 ;  Frank  H.  Hiscock,  1901 ;  John 

414 


HISTORY  OF  NEW  YORK 

M.  Davy,  temporary  1901 ;  Edwin  A.  Nash,  temporary  1902  and 
1903  ;  Martin  L.  Stover,  1903  ;  Alfred  Spring,  redesignated  1903  ; 
Pardon  C.  Williams,  redesignated  1905 ;  Edwin  A.  Nash,  1905 ; 
Frederick  W.  Kruse,  1906;  James  W.  Robson,  1907;  Alfred 
Spring  redesignated  1909;  Pardon  C.  Williams,  redesignated 
1909. 

The  justices  now  (1910)  in  office,  arranged  according  to  the 
seniority  of  their  service  and  with  the  dates  of  the  expiration  of 
their  respective  terms  of  office,  are  as  follows : 

First  District:  George  L.  Ingraham,  1917;  Philip  Henry 
Dugro,  1914;  Henry  Bischoflf,  1917;  Leonard  A.  Giegerich,  1920; 
Francis  M.  Scott,  191 1;  James  Fitzgerald,  1912;  James  A. 
O'Gorman,  1913 ;  James  A.  Blanchard,  1915  John  Proctor  Clarke, 
1915;  Samuel  Greenbaum,  1915;  Edward  E.  McCall,  1916;  Ed- 
ward B.  Amend,  1916 ;  Vernon  M.  Davis,  1916 ;  Victor  J.  Dowling 
1918;  Joseph  E.  Newburger,  1919;  John  W.  GofT,  1918;  Sam- 
uel Seabury,  1920;  M.  Warley  Platzek,  1920;  Peter  A.  Hendrick, 
1920;  John  Ford,  1920;  Charles  W.  Dayton,  1916;  John  J.  Brady, 
1920;  Mitchell  L.  Erlanger,  1920;  Charles  L.  Guy,  1920;  James 
W.  Gerard,  1921 ;  Irving  Lehman,  1922;  Edward  B.  Whitney, 
1910;  Nathan  Bijur,  1923;  Edward  J.  Gavegan,  1923;  Alfred 
Page,  1923. 

Second  District:  Garret  J.  Garretson,  1910;  Samuel  T. 
Maddox,  1910;  Almet  F.  Jenks,  1912 ;  Josiah  T.  Marean,  1912; 
William  J.  Kelley,  1917;  Joseph  A.  Burr,  1919;  Walter  H.  Jay- 
cox,  1920;  Edward  B.  Thomas,  1918;  Joseph  Aspinall,  1920; 
Frederick  E.  Crane,  1920;  Lester  W.  Clark,  1920;  William  J. 
Carr,  1920;  Townsend  Scudder,  1920;  Abel  E.  Blackmar,  1922; 
Luke  D.  Stapleton,  1922 ;  Isaac  M.  Kapper,  1923 ;  Harrington 
Putnam,  1910. 

Third  District:     Alden   Chester,    1918;    Emory  A.   Chase, 

415 


LEGAL  AND  JUDICIAL 

1910;  James  A.  Betts,  1912;  Aaron  \\  S.  Cochrane,  191 5;  Wes- 
ley O.  Howard,  1916;   Randall  J.  LeBoeuf,  1910. 

Fourth  District :  Chester  B.  McLaughlin,  1923 ;  James  W. 
Houghton,  1914;  Edgar  A.  Spencer,  1915;  John  M.  Kellogg, 
1917;   Henry  T.  Kellogg,  1917;   Charles  C.  Van  Kirk,  1919. 

Fifth  District:  Pardon  C.  Williams,  191 1;  Peter  B.  Mc- 
Lennan, 1920;  Frank  H.  Hiscock,  1910;  William  S.  Andrews, 
1913;  Watson  M.  Rogers,  1914;  Irving  R.  Devendorf,  1919; 
Pascal  C.  J.  De  Angelis,  1920;   Edgar  S.  K.  Merrill,  1923. 

Sixth  District:  Walter  Lloyd  Smith,  1916;  George  F.  Lyon, 
1919;  Albert  H.  Sewell,  1913;  Natlian  L.  Miller,  1918;  iMbert 
F.  Gladding,  1913;    Henry  B.  Coman,  1920. 

Seventh  District:  Adelbert  P.  Rich,  1914;  James  A.  Rob- 
son,  1918;  Nathaniel  Foote,  1919;  Arthur  E.  Sutherland,  1919; 
William  W.  Clark,  1920;  George  A.  Benton,  1918;  Samuel  N. 
Sawyer,  1921. 

Eighth  District:  John  S.  Lambert,  1917;  Alfred  Spring, 
192 1 ;  Frank  C.  Laughlin.  1923;  John  Woodward,  1910;  Tru- 
man C  White,  1910;  Warren  B.  Hooker,  1913;  Frederick  W. 
Kruse,  1914;  Louis  W.  Marcus,  1920;  Cuthbert  W.  Pound,  1920; 
Charles  B.  Wheeler,  1921 ;  Edward  K.  Emery,  1920;  Charles  H. 
Brown,   1920. 

Ninth  District:   Martin  J.  Keogh,  1922;  Michael  H.  Hirsch- 
berg,  1910;  Isaac  N.  Mills,  1920;  Arthur  S.  Tompkins,  1920; 
Joseph  Morschauser,  1920. 

It  would  add  much  to  the  interest  of  these  volumes  if  ex- 
tended reference  could  be  made  to  the  lives  and  the  characters 
of  the  men  who  have  been  called  upon  to  serve  upon  the  bench  of 
the  supreme  court  in  former  years.  Their  number  is  too  great, 
however,  to  make  this  feasible.  A  few  names  may  be  barely  men- 

416 


HISTORY  OF  NEW  YORK 

tioned.  John  Jay  laid  aside  his  robes  as  chief  justice  of  the  su- 
preme court  of  the  State  to  put  on  those  of  the  first  chief  justice 
of  the  supreme  court  of  the  United  States,  and  in  turn  laid  those 
aside  to  become  governor  of  New  York.  Brockholst  Livingston, 
Smith  Thompson,  Samuel  Nelson  and  Rufus  W.  Peckham,  all 
great  judges  of  the  State  supreme  court,  afterwards  served  many 
years  with  great  credit  as  associate  justices  of  the  supreme 
court  of  the  United  States.  James  Kent  and  Reuben  H.  Wal- 
worth, each  in  turn  left  the  bench  of  the  State  supreme  court  to 
serve  as  chancellor,  and  the  scales  of  justice  were  never  held 
more  evenly  or  more  firmly  than  by  these  great  equity  judges. 
Morgan  Lewis,  Daniel  D.  Thompkins,  Joseph  C.  Yates  and  Wil- 
liam L.  Marcy,  as  well  as  John  Jay,  were  governors  of  the  State, 
but  each  gave  years  of  honorable  service  upon  the  bench  of  the 
supreme  court  before  coming  to  the  office  of  chief  executive. 
Space  is  not  afforded  to  make  mention  beyond  the  mere  names 
which  we  have  recorded  in  this  volume  of  the  large  number  of 
others  who  have  given  the  better  part  of  their  lives  to  honorable 
service  as  members  of  this  court.  Such  of  them  as  have  served 
since  the  decisions  of  the  court  have  been  reported,  have  their 
names  buried  in  a  few  musty  tomes  upon  the  shelves  of  our  law 
libraries,  and  the  names  of  all  are  recorded  in  very  fine  print  on 
the  pages  of  the  civil  list  of  State  and  Colonial  officers.  Duty 
performed  in  a  sphere  such  as  they  labored  in,  is  not  conducive 
to  enduring  fame.  Their  monument  consists  of  our  system  of 
jurisprudence — not  perfect  by  any  means,  but  more  nearly  so  than 
that  upon  which  they  builded,  and  of  our  supreme  court  itself, 
which  largely  through  their  fidelity,  impartiality  and  disinterested 
service,  aided  in  a  considerable  degree  by  the  ability  of  generations 
of  lawyers  who  have  practiced  before  it,  has  been  perpetuated  for 

417 


LEGAL  AND  JUDICIAL 

upwards  of  two  hundred  years  as  the  highest  court  of  original 
jurisdiction  in  the  colony  and  State,  and  which  during  all  that  time 
has  enjoyed  the  confidence  of  a  law  abiding  and  a  law  respecting 
people. 


418 


CHAPTER  X 
On  the  Threshold  of  the  Twentieth  Century 


I 


CHAPTER  X 

On  the  Threshold  of  the  Twentieth  Century 

1900-1910 

the  bench  and  bar  of  new  YORK  STARTS  ON  THE  FOUR  HUN- 
DRETH  YEAR  OF  ITS  HISTORY — FROM  SMALL  BEGINNINGS  TO 
GREATER    THINGS — THE    COURT    OF    CLAIMS — THE    ATTORNEY 

GENERAL  AND   HIS   DUTIES A   LONG   LIST   OF   ABLE   ATTORNEY 

GENERALS — EARLY  EDITIONS  OF  THE  LAWS — THE  VARIOUS  RE- 
VISIONS   OF    THE    STATUTES — THE    CONSOLIDATED    LAWS. 

With  the  beginning  of  the  twentieth  century  the  legal  his- 
tory of  New  York  opens  upon  its  four  hundreth  year.  It  is  a 
far  cry  from  the  crude  execution  of  primitive  laws  in  the  hands 
of  the  directors-general  early  in  the  seventeenth  century  to  the 
exhaustive,  elaborate  and  scientific  practice  of  the  present  day. 
As  the  population  of  New  Netherland  and  New  York  has 
grown  from  a  few  hundred  poor  pioneers  at  the  tip  end  of 
Manhattan  Island  to  a  citizenship  of  millions,  spread  over  a 
territory  of  imperial  proportions,  so  the  broad  field  of  legal  and 
judicial  procedure  has  been  developed  and  amplified  to  meet  the 
changed  conditions  of  the  expanded  commonwealth.  It  will  be 
recalled  that  early  in  the  regime  of  Director-general  Stuyvesant 
the  states  general  of  Holland  declined  to  permit  Adriaen  Van 
der  Donck  to  establish  himself  as  a  counsellor  in  New  Nether- 
land for  the  reason  that  there  would  be  none  other  to  act  against 
him  in  legal  cases.  The  difference  between  that  time  and  the 
present  in  this  respect  is  strongly  accentuated  when  we  considtr 

421 


LEGAL  AND  JUDICIAL 

that  the  legal  practitioners  in  New  York  to-day  number  up  into 
the  thousands  while  hundreds  are  being  added  to  their  ranks 
every  year.  At  the  same  time  the  judiciary  has  been  greatly  in- 
creased in  numbers  and  has  equally  broadened  and  developed 
until  now  it  has  long  been  an  independent  and  powerful  depart- 
ment of  the  State  government  entirely  disassociated  from  the 
single  man  rule  of  the  epoch  of  the  early  directors. 

And  with  this  growth  of  the  profession  and  of  the  judiciary 
there  has  been  a  corresponding  growth  in  intellectual  strength 
and  in  moral  uprightness.  In  the  olden  times,  as  a  careful  peru- 
sal of  the  records  will  show,  the  counsellors  and  attorneys  were 
not  always  men  of  probity  and  uprightness,  much  less  men  of 
education  and  of  intellectual  grasp  and  power.  As  the  cor- 
respondence, official  accounts  and  other  records  show,  criticisms 
of  their  lack  of  ability  and  accusations  of  dishonesty  were  not 
uncommon,  and  in  most  cases  such  criticisms  and  accusations 
seem  for  the  most  part  to  have  been  well  deserved.  In  strength 
of  character,  in  moral  purpose  and  adherence  to  honest  prin- 
ciples the  men  of  the  bar  of  the  Empire  State  to-day  are  quite 
the  equals,  if  not  the  superiors,  of  their  predecessors  of  two 
hundred  or  three  hundred  years  ago. 

Of  the  judiciary  of  the  twentieth  century  even  more  can  be 
said  in  comparison  with  those  who  sat  upon  the  bench  in  the 
colonial  period  of  New  York.  The  breath  of  suspicion  rested 
upon  many  of  the  judges  from  the  time  of  the  establishment 
of  the  first  supreme  court  with  Joseph  Dudley  as  its  chief  jus- 
tice under  the  English  regime  in  1690,  down  to  the  end  of  the 
colonial  period.  Many  of  the  judges  were  sycophants  for  royal 
favor  and  were  willing  to  sacrifice  their  independence  and  their 
uprightness  for  the  sake  of  such  advancement  as  could  thus  be 
secured.     Chief  Justice  Atwood  fled  the  country  to  escape  ar- 

422 


HISTORY  OF  NEW  YORK 

rest  for  malfeasance  in  office.  Others  there  were  of  whom  it 
is  not  less  certainly  known  that  they  prostituted  their  talents  and 
their  positions  to  political  or  personal  gain. 

It  is  not  a  little  remarkable  and  it  is  certainly  a  tribute  to  the 
strength  of  the  Democratic  institutions  that  under  statehood  our 
judiciary  has  been  distinguished  for  an  ability  and  an  integrity  that 
places  it  far  ahead  of  that  of  the  colonial  period.  The  present 
generation  will  recall  but  one  serious  exception  to  the  general  high 
standard  of  moral  uprightness  which  has  ever  been  a  character- 
istic of  the  state  judiciary.  That  was  during  the  infamous  Tweed 
regime,  when  it  was  found  that  politics  had  power  to  stain  the  er- 
mine and  degrade  those  to  whom  the  people  had  entrusted  the 
privilege  and  the  opportunity  to  care  for  the  public  welfare.  In  this 
instance,  however,  only  two  of  our  judges  fell,  and  the  case  con- 
stitutes a  conspicuous  exception  to  the  long  record  of  high  moral 
purpose  and  purity  of  action,  which  has  always  distinguished  the 
judiciary  of  the  State. 

In  ability  and  in  usefulness,  it  is  doubtful  if  the  judiciary 
has  ever  been  on  a  higher  plain  than  in  the  opening  years  of  the 
twentieth  century.  It  has  been  commented  upon  and  with  some 
show  of  effectiveness  that  the  great  names  of  the  bench  have  been 
those  of  the  past ;  and  such  men  as  Chancellor  Lansing,  Chancel- 
lor Kent  and  Chancellor  Walworth,  Chief  Justice  Bronson,  Chief 
Justice  Spencer,  Chief  Justice  Nelson,  Justice  Marcy  and  others 
are  mentioned  in  this  connection.  With  the  exception  of  two  or 
three  of  those  men  of  the  past  who  towered  among  their  associ- 
ates and  whose  repute  has  been  the  pride  of  the  later  generations, 
it  is  undoubtedly  true  that  the  judges  in  the  closing  quarter  of 
the  nineteenth  century  and  the  opening  years  of  the  twentieth 
century  will  compare  favorably  in  every  respect  with  those  who 
preceded  them  a  hundred  years  more  or  so  ago.  If  they  shine  with 

423 


LEGAL  AND  JUDICIAL 

less  distinction,  that  is  probably  because  they  are  greater  in  num- 
ber and  their  work  more  widely  diffused  and  more  of  an  interpre- 
tive than  of  a  constructive  character.  Their  individual  talents 
may  therefore  be  less  conspicuous,  but  that  their  knowledge  of 
law  and  their  ability  is  in  no  sense  inferior  to  that  of  their  prede- 
cessors should  not  be  doubted  for  a  moment.  In  learning,  in 
ability,  in  broad  conception  of  their  duties  to  the  people  and  in 
acute  comprehensive  understanding  of  the  issues  of  the  day,  the 
contemporaneous  judiciary  cannot  be  surpassed  by  any  of  its  pre- 
decessors, or  by  any  of  its  present  day  rivals  in  other  common- 
wealths. Summarizing  the  New  York  bench  and  bar  of  today 
one  commentor  has  thus  written: 


"In  a  material  view  she  is  indeed  the  Empire  State.  It  would  be  arro- 
gating too  much  to  claim  for  her  the  Empire  in  Law.  Fortunately  for  the 
happiness  of  mankind,  a  best  jurisprudence  does  not  depend  upon  material 
resources  or  great  aggregations  of  population.  But  owing  to  the  great  men 
who  early  formed  our  jurisprudence,  New  York  has  made  law  not  only 
for  herself  but  for  most  of  the  other  states  of  the  union.  Her  judgments 
and  those  of  Massachusetts  have  always  been  the  most  influential  upon 
the  nascent  jurisprudence  of  the  younger  states.  Her  adjudications  have 
long  been  listened  to  with  deference  even  in  the  mother  country,  and  this 
has  grown  rather  than  lessened  down  to  this  time.  Her  reforms  in  pro- 
cedure alone  have  entitled  her  to  a  marked  pre-eminence.  She  has  always 
been  creative  in  the  domain  of  the  law.  With  a  decent  conservatism,  she 
has  at  the  same  time  headed  the  advances  of  legal  reform  and  still  marches 
in  the  van.  That  the  laws  which  her  lawyers  have  devised,  her  legisla- 
ture has  enacted  and  her  judges  have  construed  and  enforced,  are  now 
ruling  a  large  part  of  the  English-speaking  world,  and  have  been  adopted 
by  our  venerable  mother  country,  is  a  prouder  and  more  durable  achieve- 
ment of  our  state  than  all  her  material  glory  and  power.  Her  judiciary 
has  been  the  more  numerous  than  any  of  the  states.  They  have  had  the 
largest  and  most  varied  interests  to  protect  and  the  most  intricate  legal 
problems  to  solve.  Great  lights  have  shone  from  her  bench,  in  every  period 
like  beacons  visible  from  afar,  illuminating  even  the  shores  of  foreign 
lands.  In  all  times  the  mass  of  her  judges  have  been  just,  humane.  God- 
fearing men,  of  good  report,  not  greedy  of  gain,  not  ambitious  of  power, 
not  anxious  for  fame ;    learned  in  the  law,  cultivated  in  letters,  untiring  in 


HISTORY  OF  NEIV  YORK 

duty,  unswerving  from  right,  passionate  lovers  of  justice  and  liberty.  The 
names  of  most  of  them  have  been  and  can  be  little  known  to  fame,  but 
their  work  has  been  a  worthy  part  of  the  heritage  of  which  the  state  is 
proud.     Their  reward  is  in  her  prosperity,  glory  and  happiness. "^ 

Jurisdiction  to  hear  and  determine  such  claims  against  the 
State,  as  are  authorized  by  legislation  to  be  heard,  is  vested  in  the 
court  of  claims.  There  are  three  judges,  who  are  appointed  by  the 
governor  for  terms  of  six  years ;  no  more  than  two  members  of  the 
court  can  be  practicing  attorneys  or  counsellors  of  the  supreme 
court.  Regular  sessions  are  held  in  Albany  on  the  second  Tues- 
day of  January,  April,  September  and  November,  and  adjourned 
sessions  are  held  in  other  parts  of  the  state,  whenever  occasion 
requires.  In  all  cases  before  the  court,  the  attorney  general  or  his 
deputy  attends  to  represent  the  State.  Records  of  proceedings  arc 
kept  and  reports  are  annually  made  to  the  legislature.  Each  judge 
has  a  salary  of  $8,000.  A  clerk,  a  deputy  clerk,  a  stenographer 
and  a  messenger  are  appointed  by  the  judges.  The  seal  of  the 
court  is  the  arms  of  the  State  of  New  York,  surrounded  by  the 
inscription  "State  of  New  York,  Court  of  Claims." 

Members  of  the  court  since  its  establishment  in  1897  have 
been  Charles  T.  Saxton,  George  M.  Beebe,  John  F.  Parkhurst, 
John  M.  Kellogg,  Gilbert  D.  B.  Hasbrouck,  Theodore  H.  Swift, 
Adolph  J.  Rodenbeck  and  Charles  H.  Murray.  Members  of  the 
court  in  1910  with  the  dates  of  their  first  appointment  were: 
Theodore  H.  Swift,  October  16,  1902;  Adolph  J.  Rodenbeck, 
November  10,  1903,  and  Charles  H.  Murray,  December  17,  1904. 

The  chief  law  officer  of  the  State  is  the  attorney-general.  Eg- 
bert Benson  was  the  first  one  appointed  under  the  Constitution  of 
1777.     At  that  time,  among  other  things  it  was  the  duty  of  the 


I.    "The  Public  Service  of  the  State  of  New  York,"  edited  by  Paul  A. 
Chadbourne,  D.  D.,  LL.D,,  and  Walter  Burritt  Moore,  vol.  III.,  p.  41. 

425 


LEGAL  AND  JUDICIAL 

attorney-general  to  prosecute  criminals  in  all  parts  of  the  State. 
After  the  end  of  the  war,  the  State  grew  so  rapidly  in  population, 
that  the  attorney-general  was  not  able  to  conduct  all  the  criminal 
prosecutions,  and  the  office  of  assistant  attorney-general  was  cre- 
ated in  order  to  relieve  him.  The  State  was  divided  into  dis- 
tricts ;  an  assistant  attorney-general  was  appointed  in  each  dis- 
trict, and  was  directed  to  conduct  the  prosecution  of  all  crimes 
cognizable  by  the  courts  of  oyer  and  terminer,  jail  delivery,  and 
general  sessions  of  the  peace.  Under  the  first  constitution,  the 
attorney-general  was  appointed  by  the  council  of  appointment,  but 
under  the  second  he  was  appointed  by  the  senate  and  assembly. 

From  1777  until  1845  the  attorney-generals  were  appointees 
of  the  governor.  Beginning  with  November,  1847,  they  have  been 
officers  elected  at  large.  It  is  the  duty  of  the  attorney-general  to 
prosecute  and  defend  all  actions  and  proceedings  in  which  the 
state  is  interested  and  have  charge  of  all  legal  business  of  the 
officers  and  departments  of  the  state,  except  the  military  depart- 
ment. In  addition  to  these  duties,  the  attorney-general  is  a  com- 
missioner of  the  land  office  and  of  the  canal  fund,  a  member  of 
the  canal  board,  the  board  of  state  canvassers,  the  state  board  of 
equalization  of  assessments,  the  state  printing  board,  and  ex- 
officio  member  of  the  state  soldiers'  and  sailors'  home,  the  state 
board  of  health  and  the  board  of  trustees  of  Union  College.  In 
person  or  by  deputy  he  attends  each  session  of  the  court  of  claims 
on  behalf  of  the  State,  and  prepares  all  cases  on  the  part  of  the 
State  for  hearing,  argues  the  same  when  prepared,  and  causes  tes- 
timony to  be  taken  when  necessary  to  secure  the  interests  of  the 
state.  He  prepares  forms,  files  interrogatories  and  superintends 
the  taking  of  testimony  in  the  manner  prescribed  by  the  court  of 
claims,  and  generally  renders  such  services  as  may  be  necessary  to 
further  the  interests  of  the  State  in  all  cases  before  that  court, 

426 


Thomas  Addis  Emmet 


THOMAS  ADDIS  EMMET, 
f 1 764- 1 827). 
Noted  lawyer;   exile  from  Ireland;   Attorney  General,  1812. 


HISTORY  OF  NEW  YORK 

and  in  the  appellate  division  and  court  of  appeals  on  appeal  from 
awards  made  by  the  board  of  claims.  He  is  elected  by  the  people 
for  a  term  of  two  years,  receives  an  annual  salary  of  $10,000, 
and  a  further  sum  of  $1,600  for  his  personal  expenses,  and  is  al- 
lowed a  first  and  second  deputy  and  other  necessary  deputies  and 
clerks.  The  seal  of  the  office  is  the  arms  of  the  State,  surrounded 
by  the  inscription  "State  of  New  York — Attorney-General." 

Some  of  the  most  eminent  members  of  the  legal  fraternity 
in  the  State  have  held  the  office.  Following  is  a  list  of  the  incum- 
bents with  the  dates  of  their  appointment  or  election  from  the  be- 
ginning of  the  State  government  in  1777:  Egbert  Benson,  1777; 
Richard  Varick,  1788;  Aaron  Burr,  1789;  Morgan  Lewis,  1791 ; 
Nathaniel  Lawrence,  1792;  Josiah  Ogden  Hoffman,  1795;  Am- 
brose Spencer,  1802;  John  Wood  worth,  1804;  Matthias  B.  Hil- 
dreth,  1808;  Abraham  Van  Vechten,  1810;  Matthias  B.  Hil- 
dreth,  181 1;  Thomas  Addis  Emmett,  1812;  Abraham  Van 
Vechten,  1813;  Martin  Van  Buren,  1815;  Thomas  J.  Oakley, 
1819;  Samuel  A.  Talcott,  1821 ;  Greene  C.  Bronson,  1829;  Sam- 
uel Beardsley,  1836;  Willis  Hall,  1839;  George  B.  Barker, 
1842;  John  Van  Buren,  1845;  Ambrose  L.  Jordan,  1847; 
Levi  S.  Chatfield,  1849;  Gardner  Stow,  1853;  Ogden  Hoffman, 
1853;  Stephen  B.  Gushing,  1855;  Lyman  Tremain,  1857;  Charles 
G.  Myers,  1859;  Daniel  S.  Dickinson,  1861 ;  John  Cochrane, 
1863;  John  H.  Martindale,  1865;  Marshall  B.  Champlain,  1867; 
Francis  C.  Barlow,  1871 ;  Daniel  Pratt,  1873;  Charles  S.  Fair- 
child,  1875;  Augustus  Schoonmaker,  Jr.,  1877;  Hamilton  Ward, 
1879;  Leslie  W.  Russell,  1881 ;  Denis  O'Brien,  1883;  Charles  F. 
Tabor,  1887;  Simon  W.  Rosendale,  1891 ;  Theodore  E.  Hancock, 
1893;  John  C.  Davies,  1898;  John  Cunneen,  1902;  Julius  M. 
Mayer,  1904;  William  S.  Jackson,  1906,  and  Edward  R.  O'Mal- 
ley,  1908. 

427 


LEGAL  AND  JUDICIAL 

In  the  provincial  period,  as  has  already  been  pointed  out,  the 
English  common  law  was  most  in  force  here.  In  addition  to  that 
were  also  the  enactments  of  the  legislative  assembly  of  the  pro- 
vince so  far  as  they  were  approved  by  the  governor,  representing 
the  king.  Within  the  particular  territory  to  which  they  applied, 
the  laws  enacted  by  this  body  were  as  effectual  as  acts  of  the 
parliament  in  England.  The  acts  of  the  assembly  beginning  with 
the  year  1691  have  been  printed  but  the  collections  that  have  been 
preserved  are  very  incomplete.  In  the  year  1694,  William  Brad- 
ford, who  was  then  the  public  printer  of  the  colony,  published  the 
laws  enacted  by  the  colonial  legislature  since  its  first  session  in 
1691.  There  are  few  copies  of  this  edition  known  to  be  in  exist- 
ence. One  is  in  the  library  of  the  Historical  Society  of  Pennsyl- 
vania, one  in  the  Library  of  the  New  York  Society.one  in  the  Pub- 
lic Library  of  New  York  City,  one  in  the  State  Library  in  Albany, 
and  one  in  the  office  of  the  Secretary  of  State  in  Albany.  One 
copy  privately  owned  has  been  printed  in  fac-simile  by  the  Grolier 
Club  of  New  York,  under  the  supervision  and  editorship  of  Rob- 
ert Ludlow  Fowler.  This  reprint  is  generally  referred  to  as 
"Fowler's  Bradford".  The  copy  in  the  State  library  was  purchased 
by  the  State  at  the  sale  of  the  library  of  Mr.  Brinkley,  of  Hart- 
ford, Connecticut,  its  former  owner,  and  is  referred  to  in  the 
notes  as  "Brinkley's  Bradford".  It  contains  most  of  the  session 
laws  down  to  the  year  17 10,  bound  in  with  the  original  publication 
of  1694. 

After  the  year  1694,  the  laws  were  regularly  printed  session 
by  session.  William  Bradford,  the  official  printer,  made  the  pagi- 
nation of  the  sheets  successive  as  the  laws  were  struck  off.  These 
prints  were  bound  as  happened  to  suit  the  fancy  of  those  who  pos- 
sessed them,  and  therefore  we  find  that  some  of  the  earlier  volumes 
now  extant  contain  more  laws  than  have  been  preserved  in  others. 

428 


John  Van  Buren 


-<-8r  .Iclonoi )  v^m  ■ 


JOHX  VAX  BUREX. 

(1810-1866). 

Distinguished  Lawyer ;    Attorney  General,  1845-47 ;    son  of 
President  Martin  Van  Buren. 


HISTORY  OF  NEfF  YORK     ' 

In  1710  the  legislature  gave  directions  to  Bradford  to  print 
all  the  laws  that  had  been  in  force  "since  the  arrival  of  Governor 
Sloughter."  Notwithstanding  this  the  printing  still  continued  to 
be  incomplete  and  inaccurate,  and  complaints  on  this  score  became 
more  and  more  frequent  and  emphatic.  In  1741  the  general  as- 
sembly passed  an  act  to  "revise,  digest  and  print  the  laws  of  the 
colony".  The  act  which  was  passed  in  November  of  tliat  year,* 
premised  that  "the  laws  of  this  colony,  have  from  time  to  time 
been  very  incorrectly  printed  and  irregularly  bound  up,  which  has 
often  occasioned  such  Difficulties  &  Inconveniences,  That  the 
Legislature  do  conceive  the  Revisal  of  all  the  Said  Laws  from  the 
Happy  Revolution,  and  the  New  Printing  of  Them  in  one 
Body  on  good  Paper,  will  not  only  remove  the  Said  Difficulties 
and  Inconveniences,  but  be  of  great  use  and  service  to  the  pub- 
lick." 

Daniel  Horsmanden,  afterwards  chief  justice,  was  chosen 
to  execute  this  work  and  was  directed  to  collect  in  one  volume 
exact  copies  of  all  laws  in  force  from  the  time  of  the  Revolution 
to  the  end  of  that  session  of  the  general  assembly  (1741)  being 
a  series  of  about  fifty-three  years,  carefully  examining  each  act 
with  the  original  and  making  an  index  and  supervising  the  print- 
ing of  the  work.  For  all  this  service  he  was  to  receive  two  hun- 
dred and  fifty  pounds  current  money.  Horsmanden  neglected  to 
do  the  work  thus  entrusted  to  his  care,  and  it  has  been  remarked 
that  he  was  more  interested  in  drawing  up  the  famous  narrative 
of  the  so-called  negro  conspiracy  of  1741  and  defending  his 
course  therein,  than  he  was  in  making  the  desired  revision  of  the 
laws. 


2.  Livingston  and  Smith's  "Revised  Statutes",  chapter  721 ;  Van 
Schaack's  "Revised  Statutes",  chapter  721 ;  "The  Colonial  Laws  of  New 
York",  vol.  IIL,  p.  192,  chapter  721,  Laws  of  1741. 

429 


LEGAL  AND  JUDICIAL 

After  this  failure  of  Horsmanden,  the  matter  came  before 
the  general  assembly  again  in  1750.  By  an  act  passed  in  Novem- 
ber of  that  year^  William  Livingston  and  William  Smith,  Jr., 
were  appointed  to  undertake  the  revision  and  James  Parker  was 
appointed  to  print  the  work.  This  act  also  recited  that  the  laws 
had  from  time  to  time  been  very  incorrectly  printed  and  irregu- 
larly bound  up.  It  was  provided  that  Livingston  and  Smith 
shall  receive  the  sum  of  two  hundred  and  eighty  pounds  for 
their  services,  and  James  Parker  should  be  paid  at  the  rate  of 
twenty  shillings  "for  every  sheet  of  Paper  in  the  said  Printed 
Book." 

By  1752,  Livingston  and  Smith  had  completed  the  first 
volume  of  their  work  and  it  was  published,  including  the  col- 
onial laws  then  in  force,  enacted  by  the  colony  from  1691  to 
1751.  In  the  year  1762,  the  same  editors  published  the  colonial 
laws  enacted  since  1751  down  to  and  including  the  twenty- 
second  day  of  May,  1762.  The  revisors  announced  that  in  their 
final  work  they  had  omitted  many  acts  which  could  not  be  found 
and  they  criticised  the  earlier  editions  of  the  laws  for  containing 
"acts  which  have  been  practiced  upon  that  were  never  passed  by 
the  whole  legislature",  and  at  the  same  time  omitting  others  that 
had  been  duly  passed.  The  bad  condition  of  the  printed  laws, 
was  considerably  due  to  the  fact  that  after  the  acts  had  been 
passed  by  the  general  assembly  and  printed,  the  crown  had  the 
power  of  rejecting  them  after  examination,  and  did  so  reject 
many  of  them.  In  1753  the  lords  of  justice  of  England  recom- 
mended a  codification  of  all  the  laws  of  New  York,  but  the  as- 
sembly rejected  the  proposition  on  account  of  the  expense  al- 
ready incurred  in  the  Livingston  and  Smith  revision. 


3.  Livingston  and  Smith's  "Revised  Statutes",  chapter  907;  Van 
Schaack's  "Revised  Statutes",  chapter  907;  "The  Colonial  Laws  of  New 
York",  vol.  IIL,  p.  832,  chapter  907,  Laws  of  1750. 

430 


HISTORY  OF  NEW  YORK 

In  1772  the  general  assembly  passed  another  act  for  re- 
vision of  the  laws  of  the  colony.  In  the  preamble  of  that  act* 
it  was  set  forth  that  "the  laws  of  this  colony  are  at  present  ir- 
regularly bound  up,  not  properly  digested,  which  often  occa- 
sions difficulties  and  inconveniences,  it  is  therefore  conceived 
necessary  that  all  the  Laws  from  the  happy  Revolution  down 
to  the  End  of  the  Present  Session,  should  be  revised  and  di- 
gested, and  that  the  same  be  new  printed  on  good  paper  and 
bound  in  one  or  more  Volumes  of  a  suitable  size."  Peter  Van 
Schaack  was  appointed  to  do  the  work  of  revision  and  to  be 
paid  therefor  the  sum  of  two  hundred  and  fifty  pounds.  It 
was  further  provided  that  the  work  should  be  printed  by  Hugh 
Gaine.  This  revision  contained  all  the  laws  in  the  Livingston 
and  Smith  work,  and  in  addition  the  acts  passed  between  1753 
and  March  8,   1773. 

The  subsequent  laws  of  1774  and  1775  were  published  by 
Hugh  Gaine,  the  public  printer,  and  copies  of  this  publication 
are  in  various  libraries,  public  and  private. 

All  of  the  foregoing  colonial  editions  contained  the  full  text 
of  the  laws  in  force  at  the  date  of  publication,  acts  that  had  ex- 
pired being  referred  to  by  title  only.  As  it  was  the  custom  to 
enact  laws  for  a  limited  period,  many  important  acts  expired  be- 
fore any  publication  of  the  laws  was  made,  and  as  a  result  all 
early  publications  of  the  colonial  laws  contain  a  comparatively 
small  proportion  of  the  colonial  legislation. 

In  1891^  the  legislature  directed  the  statutory  revision  commis- 
sion to  republish  verbatim,  preserving  the  original  spelling  and 
punctuation,  the  statutes  of  the  colony,  from  the  foundation  there- 


4.  Van  Schaack's  "Revised  Statutes",  chapter  1543 ;  "Colonial  Laws 
of  New  York",  vol.  V.,  p.  355,  chapter  1543,  Laws  of  1772. 

5.  Chapter  125,  Laws  of  1891. 


LEGAL  AND  JUDICIAL 

of  to  the  adoption  of  the  first  constitution.  The  commission  took 
the  edition  of  Van  Schaack  as  a  basis  of  this  publication,  so  far 
as  the  arrangement  and  the  chapter  numbering  were  concerned. 
Every  act,  however,  of  which  the  original  or  a  copy  was  known  to 
be  in  existence,  was  printed  in  full.  These  were  published  in  1894 
by  the  State  in  five  volumes,  under  the  title  of  "The  Colonial  Laws 
of  New  York." 

Immediately  upon  the  assurance  of  Independence,  activity  in 
new  legislation  began  in  the  State  legislature,  and  continued  at  a 
rapid  pace  for  many  years  thereafter.  Naturally  the  change  in 
the  form  of  government  made  this  an  imperative  matter.  Also 
the  temper  of  the  people  at  that  time  in  opposition  to  anything 
that  savored  of  the  former  monarchial  control  of  the  colony,  had 
the  strongest  influence  in  developing  legislation,  which  should 
meet  the  common  desire  for  emancipation  in  every  way  possible 
from  all  that  had  controlled  heretofore.  The  attainder  of  estates 
was  advocated  and  the  entail  converted  into  fee  simple.  The  law 
of  primogeniture  was  abolished  and  alterations  were  made  in  the 
canon  of  descents  so  as  to  conform  to  democratic  rather  than 
monarchial  institutions  as  they  had  been  before.  The  immuni- 
ties, emoluments  and  privileges  accorded  to  the  Church  of  Eng- 
land in  New  York  were  repealed  in  accord  with  the  new  principle 
of  the  separation  of  church  from  state.  In  these  acts  was  in- 
volved the  abrogation  of  the  principle  that  all  the  inhabitants 
should  pay  taxes  for  the  support  of  the  established  church.  Other 
laws  governing  the  colony  were  repealed  or  altered  in  order  to 
make  them  consistent  with  the  newly  established  democratic  ideas. 
These  changes,  many  and  vital,  brought  out  in  a  very  few  years 
the  imperative  necessity  of  revising  the  laws  so  that  there  should 
be  a  fixed  code  clearly  conforming  to  the  new  order  of  things. 

Consideration  was  duly  given  to  this  revision,  and  the  first 

432 


.^ 


Richard  Varick 


hnfi  T) 


RICHARD  \ARICK. 

(1753-1831)- 

Lawyer  and  Soldier;  Recorder  of  New  York,  1783-89;  At- 
torney General  of  State,  1788:  Mayor  of  New  York,  1791-1801 ; 
Reviser  of  Statutes  with  Samuel  Jones. 


HISTORY  OF  NEW  YORK 

act  relating  to  it  was  passed  on  the  fifteenth  day  of  April,  1786. 
The  preamble  of  the  act  calls  attention  to  the  declaration  in  the 
Constitution  of  the  State  that  certain  parts  of  the  law  of  England 
and  the  colony  of  New  York  continued  to  be  the  law  of  the  State, 
and  that  "such  of  said  statutes  as  have  been  generally  supposed 
to  extend  to  the  late  colony  of  New  York  and  to  this  State  are 
contained  in  a  great  number  of  volumes,  and  such  statutes  as  well 
as  the  acts  of  the  legislature  of  the  late  colony,  are  conceived  in 
a  style  and  language  improper  to  appear  in  the  statute-books  of 
this  State."  Samuel  Jones  and  Richard  Varick  were  chosen  to  do 
the  work  of  collecting  and  revising  the  laws.  Each  compiler 
was  allowed  a  yearly  salary  of  £400,  and  the  work  was  to  be  com- 
pleted within  two  years. 

Samuel  Jones  was  a  celebrated  New  York  lawyer  of  the  Rev- 
olutionary period,  a  son  of  William  Jones,  a  respected  lawyer  of 
the  early  colonial  bar,  and  a  nephew  of  Judge  Thomas  Jones,  of 
the  colonial  supreme  court.  He  was  a  loyalist,  but  not  active 
during  the  Revolution.  After  the  war  he  was  a  member  of  the 
State  assembly  and  State  senate,  and  his  name  became  memorable 
by  his  connection  with  the  first  revision  of  the  statutes  of  the  State. 

Richard  Varick,  associated  v.ith  Samuel  Jones  in  this  re- 
vision, was  a  native  of  New  Jersey,  where  he  was  born  in  1753. 
He  practiced  law  in  New  York  before  the  outbreak  of  the  Revolu- 
tion, but  during  the  war  served  as  military  secretary  to  General 
Philip  Schuyler,  as  aide-de-camp  to  General  Benedict  Arnold,  and 
was  a  member  of  Washington's  staff.  After  the  war  he  served 
as  recorder  of  the  city  of  New  York  from  1783  to  1789,  and  as 
mayor  from  1791  to  1801.  He  was  attorney  general  of  the 
State  in  1788-9.  Later  years  of  his  life  he  passed  in  retirement 
and  he  died  in  Jersey  City  in  July,  1831. 

In  some  respects  this  first  State  revision  was  the  most  im- 

28 


LEGAL  AND  JUDICIAL 

portant  that  had  yet  been  completed  in  New  York,  and  it  far  ex- 
ceeded in  scope  and  in  value  anything  that  had  been  attempted  un- 
der the  colonial  government.  It  was  proposed  to  examine  the  en- 
tire statute  law  of  England  and  the  province,  and  with  the  revision 
completed,  to  cause  all  other  statutes  in  New  York  to  forever 
cease  to  be  operative.  As  the  revisers  progressed  in  their  work, 
they  reported  from  time  to  time  to  the  legislature,  and  the  bills 
which  they  advised  were  generally  adopted  by  the  legislature 
and  the  council  of  revision  which  had  general  charge  of  this  work. 
When  the  work  of  recasting  and  re-enacting  the  necessary  Eng- 
lish statutes  had  been  completed,  the  legislature  in  1788  passed 
an  act  declaring  that  after  May  of  the  following  year  "none  of 
the  statutes  of  England  or  of  Great  Britain  shall  operate  or  be 
considered  as  laws  of  the  State."  This  revision  eventually  de- 
termined what  parts  of  the  statutes  of  England  and  Great  Britain 
should  be  continued  under  the  State  order  of  affairs.  So  far 
as  acts  of  the  provincial  assembly  were  concerned  the  revisers 
did  not  accomplish  this  work,  although  the  act  directing  the  re- 
vision contemplated  that.  It  was  not  until  fifty  years  later  that 
all  the  acts  of  the  assembly  of  the  province  were  finally  repealed. 
Some  of  them  were  recommended  for  repeal  by  the  revisers  of 
1787  and  1789,  and  the  legislature  acted  accordingly.  But  the 
greater  number  of  them  still  remained  operative.  The  Jones- Var- 
ick  revision  was  the  only  comprehensive  digest  of  the  laws  of 
New  York  down  to  1800.  Nevertheless  few  changes  were  made 
in  the  laws  as  they  existed  prior  to  the  Revolution.  Therefore 
the  laws  under  the  State  government  remained  practically  as  they 
had  before  existed. 

A  second  revision  practically  following  the  work  of  Messrs. 
Jones  and  Varick  was  a  private  venture  undertaken  by  Thomas 
Greenleaf.    It  had  no  legislative  sanction,  but  it  was  capably  done 

434 


HISTOR  Y  OF  NEW  YORK 


and  went  into  a  second  edition ;  as  it  was  recognized  by  the  courts 
it  was  practically  accepted  as  authoritative. 

By  act  of  the  legislature  of  1801  another  revision  of  the 
laws  was  directed  to  be  undertaken  by  James  Kent  and  Jacob 
Radcliffe.*  Two  years  were  given  to  them  in  which  to  do  the 
work,  and  an  allowance  of  $1,000  each  was  made  for  their  ser- 
vices. The  revision  of  Kent  and  Radcliffe  was  printed  in  1802 
in  two  octavo  volumes,  by  Charles  R.  and  George  Webster,  Al- 
bany. 

In  1813  the  revision  of  Kent  and  Radcliflfe  was  superseded 
by  the  revision  undertaken  by  William  P.  Van  Ness  and  John 
Woodworth,  by  authority  of  an  act  of  the  legislature  of  181 1. 
The  act''  authorizing  this  revision  directed  the  revisors  to  ar- 
range the  laws  of  a  general  and  permanent  nature  systematically 
in  divisions  under  the  proper  headings,  with  such  marginal  notes 
as  might  appear  to  be  desirable  for  public  information. 

As  the  revision  of  Jones  and  V'arick  was  the  first  of  the 
State  revisions  in  the  point  of  time,  so  that  of  Van  Ness  and 
Woodworth  was  facile  princeps  in  point  of  method  and  ar- 
rangement; the  marginal  notes,  prepared  by  John  V.  N.  Yates, 
and  included  in  the  revision  of  1813,  are  among  the  most  valu- 
able expositions  of  the  laws  of  this  State;  they  oftentimes,  by 
enumerating  the  various  English  and  colonial  acts  which  con- 
tained like  provisions,  embraced  a  succinct  history  of  the  stat- 
utes to  which  they  refer.  Even  at  the  present  time  the  history 
of  many  of  the  legislative  measures  may  be  more  easily  gath- 
ered from  this  revision  than  from  any  other  single  work,  and 
it  remains  a  profound  example  of  faithful  professional  service.' 


6.  Giapter  190,  Laws  of  1801. 

7.  Chapter   150,  Laws  of  181 1. 

8.  "Constitutional  and  Legal  History  of  New  York  in  the  Nineteenth 
Century",  by  Robert  Ludlow  Fowler,  in  "The  Memorial  History  of  the 
City  of  New  York,"  vol.  HL,  p.  630. 

435 


LEGAL  AND  JUDICIAL 

After  the  adoption  of  the  second  constitution  in  182 1,  the 
necessity  of  a  new  edition  of  the  laws  pressed  itself  upon  pub- 
lic attention.  In  1823  and  again  in  1824,  Governor  Yates,  who 
had  been  a  justice  of  the  supreme  court  for  fourteen  years, 
specifically  called  the  attention  of  the  legislature  to  the  condi- 
tion of  things.  Many  changes  had  been  made  in  the  laws  by 
the  new  constitution,  and  the  statute  book,  as  it  then  existed,  set 
these  forth  very  inadequately  and  in  very  confused  manner. 
In  1823  the  legislature  passed  an  act  providing  for  this  revi- 
sion.* 

Those  who  were  selected  to  do  the  work  were  Chancellor 
James  Kent,  Erastus  Root,  the  lieutenant-governor,  and  Benja- 
min F.  Butler,  who  was  then  a  young  lawyer,  associated  with 
Martin  Van  Buren,  and  who  was  afterwards  attorney-general 
of  the  United  States  under  President  Jackson.  Among  other 
things  the  revisers  were  authorized  and  directed  to  collect  and 
reduce  into  proper  form  all  the  acts  of  the  legislature  then  in 
force,  omitting  all  of  the  acts  repealed  and  reducing  all  various 
acts  upon  the  same  subject  to  acts  of  one  chapter  each.  Prac- 
tically, like  the  revisions  that  had  preceded  it  in  1802  and  1812, 
this  revision  was  to  be  little  more  than  an  orderly  arrangement 
of  the  statutes  then  in  force,  properly  indexed.  Two  years 
were  allowed  for  the  completion  of  the  work. 

Chancellor  Kent  declined  to  act  as  one  of  the  revisers  and 
John  Duer  was  appointed  in  his  place.  Messrs.  Duer  and  But- 
ler were  not  at  all  in  sympathy  with  their  colleague,  Mr.  Root, 
and  the  revision  proceeded  for  a  time  along  divided  lines.  Fin- 
ally Messrs.  Duer  and  Butler  succeeded  in  having  a  bill  passed 
by  the  legislature^*  giving  wider  scope  to  their  work  and  substi- 


9.  Chapter  336,  "Laws  of  1824." 

10.  Chapter  324,  "Laws  of  1825." 

436 


HISTORY  OF  NEW  YORK 

tilting    the    name    of    Henry    Wheaton    for    that    of    Erastus 
Root. 

In  the  new  plan  which  they  proposed,  the  revisers  con- 
templated not  only  a  reduction  of  all  laws  on  the  same  sub- 
ject into  chapters,  but  also  an  entirely  new  arrangement  of  the 
statutes  then  existing,  to  the  end  that  the  statutes  should  be 
lessened  in  number  and  made  more  precise,  simple,  and  free 
from  obscurities,  so  as  to  generally  simplify  the  acquisition  of 
knowledge  of  the  science  of  law.  The  act  of  1825  amending 
the  bill  of  1824  was  like  those  which  authorized  the  preceding 
revisions,  and  was  calculated  to  cover  the  collection  and  revision 
of  all  public  acts  in  force  at  the  end  of  the  fortieth  legislative 
session  in  1825.  Power  was  conferred  upon  the  revisers  to 
complete  the  revision  in  such  a  manner  as  might  seem  to  them 
desirable  in  order  to  make  the  revised  acts  more  plain  and  more 
easy  to  be  understood. 

In  the  year  1826,  the  revisers  mapped  out  more  completely 
their  plan  and  classified  the  statutes  to  be  revised.  They  finally 
determined  upon  dividing  the  work  into  five  principle  divisions 
as  follows :  The  first  part  to  contain  those  acts  which  related 
to  the  territory,  the  political  division,  the  civil  polity,  and  the  in- 
ternal administration  of  the  State ;  the  second  part  those  acts 
which  related  to  real  and  personal  property,  the  domestic  rela- 
tions, and  to  all  matters  generally  connected  with  private  rights ; 
the  third  part  to  contain  the  statutes  relating  to  the  judicial 
branch  of  the  government  and  to  procedure  in  civil  cases ;  the 
fourth  part  to  be  concerned  with  the  statutes  relating  to  crimes 
and  punishments,  to  the  mode  of  procedure  in  criminal  cases, 
and  to  prison  discipline ;  and  the  fifth  part  with  the  laws  re- 
lating to  cities,  villages  and  other  corporations,  and  miscellaneous 
public  laws. 

437 


LEGAL  AND  JUDICIAL 

While  this  work  was  in  progress,  Mr.  Wheaton,  in  1827,  was 
sent  as  charge  d'affaires  of  the  United  States  to  Denmark,  and 
Mr.  John  C.  Spencer  was  appointed  to  his  place.  The  first  part 
of  the  revision  as  completed  was  the  united  work  of  Messrs. 
Butler,  Duer,  Wheaton  and  Spencer,  but  the  remaining  parts 
were  accomplished  by  Messrs.  Butler,  Duer  and  Spencer.  To 
these  three  men  last  mentioned  is  due  that  revision  of  the 
statute  laws  of  the  State  which  has  lasted  for  upwards  of  three- 
quarters  of  a  century.  The  revision  was  considered  at  the  gen- 
eral and  special  sessions  of  the  legislature  for  two  years.  It 
was  adopted  and  went  into  effect  January  i,  1828,  May  i,  1828, 
and  January   i,   1830. 

By  the  legislative  act  of  1830^^  it  was  provided  that  any 
person  might  publish  the  revised  statutes,  and  that  the  work  so 
published  might  be  accepted  in  evidence  if  accompanied  with  the 
certificate  of  the  secretary  of  state  or  two  of  the  revisers.  Un- 
der this  law  several  editions  of  the  revised  statutes,  unofficial 
and  private  enterprises,  have  been  published  from  time  to  time. 
The  revisers  of  1827-1828  published  another  edition  in  1836 
and  a  third  edition  in  1846- 1848.  In  these  editions  they  in- 
corporated all  the  new  legislation  which  had  been  enacted  since 
1830. 

Another  edition  was  prepared  by  Hiram  Denio  and  William 
Tracy,  and  published  in  1852.  The  editors  of  this  edition  made 
some  radical  changes,  going  so  far  as  to  alter  the  text  of  various 
provisions  of  the  revised  statutes  and  other  former  statutes,  so 
as  to  have  them  conform  to  the  new  state  of  things  under  the 
Constitution  of  1846,  which  had  made  many  important  and  sweep- 
ing alterations  in  the  constitution  and  laws  of  the  State.  A  fifth 


II.    Chapter  259,  "Laws  of  1830." 

438 


David  Dudley  Field 


.QJHri  yl  aiVAO 


DAVID  DUDLEY  FIELD. 
(1805-1894). 

Eminent  Lawyer,  Reformer  and  Codifier;  principal  author 
of  New  York  Code  of  Procedure,  and  of  political,  civil  and  penal 
codes. 


HISTORY  OF  NEIV  YORK 

edition  of  the  revised  statutes  was  prepared  by  Amasa  J.  Parker, 
George  Wolford  and  Edward  Wade,  and  was  published  in  1859. 
No  other  edition  appeared  for  nearly  twenty  years,  when  a  work 
prepared  by  George  \V.  Cothran  was  published  in  1875.  Seven 
years  later,  in  1882,  came  a  seventh  edition  edited  by  Montgomery 
H.  Throop,  and  the  same  editor  published  another  edition  in 
1889. 

The  constitutional  convention  of  1846  recognized  the  neces- 
sity of  a  systematic  code  of  legal  practice,  and  to  that  end  provided 
that  commissioners  should  be  appointed  "to  revise,  reform,  sim- 
plify and  abridge  the  rules  of  practice  pleadings,  forms  and  pro- 
ceedings of  the  courts  of  record."  In  accordance  with  this  pro- 
vision of  the  constitution,  the  legislature  appointed  as  commis- 
sioners Arphaxed  Loomis,  David  Graham  and  David  Dudley 
Field.  These  gentlemen  prepared  the  instrument  known  as  the 
New  York  Code  of  Procedure,  or  the  "Field  Code,"  which  was 
adopted  in  1848,  and,  with  its  amendments,  modifications  and  ad- 
ditions, still  forms  our  law  of  practice  and  procedure,  and  the  prin- 
ciples of  which  have  been  adopted  in  many  other  of  our  States 
and  in  England,  to  a  greater  or  less  extent. 

There  was  also  a  provision  in  the  Constitution  of  1846  for 
the  appointment  of  three  commissioners  "whose  duty  it  shall  be 
to  reduce  into  a  written  and  systematic  code  the  whole  body  of 
the  law  of  this  State,  or  so  much,  and  such  parts  thereof  as  to 
the  said  commissioners  shall  seem  practicable  and  expedient." 
Under  this  a  commission  was  appointed  but  a  number  of  changes 
in  the  personnel  thereof  took  place  from  time  to  time.  During 
the  time  the  commission  consisted  of  David  Dudley  Field,  William 
Curtis  Noyes  and  Alexander  Bradford,  several  reports  w-ere 
made  to  the  legislature,  which  included  the  draft  of  a  "Political 
Code,"  a  "Civil  Code,"  and  a  "Penal  Code."    The  final  report  was 

439 


LEGAL  AND  JUDICIAL 

submitted  in  1864.  In  this  the  commissioners  say: — "The  Codes 
which  the  Commissioners  have  thus  prepared,  together  with  the 
Codes  of  Civil  and  Criminal  Procedure,  heretofore  submitted  by 
the  Commissioners  on  Practice  and  Pleadings,  complete  that  work 
of  codification  which  was  contemplated  by  the  constitution  of 
1846,  and  when  the  same  shall  have  been  considered  and  sanc- 
tioned by  the  Legislature,  the  people  of  the  State  of  New  York 
will  have  the  whole  body  of  their  laws  in  a  written  and  syste- 
matic form." 

None  of  these  three  codes  reported  by  this  commission  was, 
however,  adopted  by  the  legislature. 

The  command  of  the  constitution  relating  to  the  codification 
of  the  body  of  the  law  had  resulted  simply  in  the  enactment  of 
the  "Code  of  Procedure."  The  judiciary  article  of  the  constitu- 
tion adopted  in  1869  omitted  this  command,  but  the  legislature 
in  1870^  passed  an  act  providing  for  a  new  revision  of  the 
statutes.  Under  this  act  Governor  Hoffman  appointed  Francis 
Kernan,  Judge  Amasa  J.  Parker,  and  Montgomery  Throop  as 
commissioners.  Mr.  Kernan  declined  to  serve  and  Nelson  J. 
Waterbury  was  appointed  in  his  stead.  These  gentlemen  differed 
greatly  in  opinion  as  to  the  general  principles  upon  which  their 
work  should  be  performed,  and  majority  and  minority  reports 
were  presented  to  the  legislature.  Judge  Parker  resigned  and 
Charles  Stebbins  was  appointed  to  the  vacancy.  Afterwards  Mr. 
Waterbury  retired  and  Jacob  I.  Werner  was  appointed  in  his 
place.  The  commission,  now  consisting  of  Messrs.  Throop,  Steb- 
bins and  Werner,  went  on  with  the  work  which  mainly  related  to 
the  courts  and  officers  of  justice  and  to  proceedings  in  civil  cases. 
At  the  time  their  first  report  was  presented,  in  which  Mr.  Stebbins 
did  not  join,  Mr.  Throop  announced  the  resignations  of  Mr. 


12.     Chapter  Zi<  Laws  of  1870. 

440 


HISTORY  OF  N EH'  YORK 

Stebbins  and  Mr.  Werner.  Governor  Tilclen  filled  the  vacancies  by 
appointing  Alexander  S.  Johnson  and  Sullivan  Cavcrno.  The 
commission  as  thus  constituted  presented  to  the  legislature  of 
1876  the  first  thirteen  chapters  of  what  was  called  "The  Code 
of  Remedial  Justice."  This  was  enacted  and  the  name  was  after- 
wards changed  to  the  "Code  of  Civil  Procedure."^  Judge  John- 
son retired  from  the  commission  the  same  year  and  Judge  James 
Emott  was  appointed  in  his  place ;  but  before  any  more  of  their 
work  was  enacted  into  law  the  term  of  the  commissioners  ex- 
pired. The  only  result  of  thirty  years  of  effort  to  carry  out  the 
requirements  of  the  Constitution  of  1846  was  the  Code  of  Proce- 
dure, which  was  largely  the  work  of  David  Dudley  Field,  and 
which  was  superseded  by  the  first  thirteen  chapters  of  the  Code 
of  Civil  Procedure  which  was  in  the  main  compiled  by  Montgom- 
ery H.  Throop.  In  1880,  nine  additional  chapters,  largely  pre- 
pared by  Mr.  Throop,  were  added  by  the  legislature  to  the  Code 
of  Civil  Procedure." 

In  1 88 1  the  Code  of  Criminal  Procedure  and  the  Penal  Code 
prepared  many  years  before  by  David  Dudley  Field,  and  which 
had  been  carefully  revised  by  a  commission  consisting  of  Mr. 
Field,  Judge  Emott  and  Benjamin  K.  Phelps,  ex-district  at- 
torney of  New  York,  and  later  by  Judge  Emott,  Mr.  Phelps  and 
Augustus  Schoonmaker,  ex-attorney  general,  were  enacted  by  the 
legislature  and  became  part  of  the  law  of  the  State. ^^ 

A  new  effort  was  made  at  revision  in  1889.  By  Chapter  289 
of  the  laws  of  that  year,  the  governor  was  authorized  to  appoint 
a  commission  of  three  to  consolidate  and  revise  the  general 
statutes  of  the  State.    Governor  Hill,  pursuant  to  this  authority. 


13.  Chapter  416,  Laws  1877. 

14.  Chapter  178,  Laws  of  1880. 

15.  Chapter  442,  Laws  of  1881  and  Chapter  676,  Laws  of  1881. 

441 


LEGAL  AND  JUDICIAL 

appointed  Isaac  H.  Maynard,  Charles  A.  Collin  and  Eli  C.  Bel- 
knap as  commissioners.  They  entered  upon  their  labors  in  June 
of  that  year,  and  the  commission  continued  in  existence  until 
1900.  During  portions  of  that  time,  besides  those  named,  Daniel 
Magone,  John  J.  Linson,  Charles  Z.  Lincoln,  William  H.  John- 
son and  A.  Judd  Northrup  served  upon  the  commission,  and  its 
labors  resulted  in  the  enactment  of  forty-eight  general  laws  and 
the  presentation  to  the  legislature  of  forty-nine  other  bills  in  com- 
pletion of  its  plan  of  revision.  All  but  four  of  the  bills  so  pre- 
sented failed  to  pass.  The  legislature  in  that  year  passed  an  act 
(Chapter  664)  which  abolished  the  Statutory  Revision  Commis- 
sion and  left  its  work  incompleted. 

The  subject  was  subsequently  considered  by  various  legis- 
lative committees,  and  in  1904  the  legislature  passed  an  act 
creating  a  board  of  Statutory  Consolidation  consisting  of  Adolph 
J.  Rodenbeck,  Charles  Andrews,  Judson  S.  Landon,  William 
B.  Hornblower  and  John  G.  Milburn,  "to  direct  and  control  the 
revision,  simplification,  arrangement  and  consolidation  of  the 
statutes  of  the  State."" 

Judge  Andrews  declined  to  serve  and  Governor  Odell  ap- 
pointed Adelbert  Moot  in  his  place.  The  board  organized  by  the 
selection  of  Judge  Rodenbeck  as  chairman  and  Frederick  E. 
Wadhams  as  secretary.  Judge  Landon  died  soon  after  and 
his  place  never  was  filled.  The  work  was  carried  on  to  a  com- 
pletion by  the  other  members  of  the  board.  Under  the  law  they 
were  required  to  follow  the  plan  adopted  in  the  general  laws  so 
far  as  practicable,  and  the  statutes  were  "not  to  be  changed  in 
substance."  The  report  of  the  board  was  made  to  the  legisla- 
ture of   1908.     It  proposed   for  enactment  sixty-one  "Consoli- 


16.     Chapter  664,  Laws  of  1904. 

442 


Charles  E.  Hughes 


CHARLES  E.  HUGHES. 

(1862—). 

Lawyer  and  Jurist ;  Professor  of  Law,  Cornell  University, 
1893-95;  Special  Lecturer  New  York  Law  School,  1893-1900; 
Counsel  to  Legislative  Committee,  Gas  investigation,  1905,  and 
Insurance  investigation,  1905-6;  Governor,  1907-10;  Associate 
Justice  United  States  Supreme  Court.  1910 — . 


HISTORY  OF  NEJV  YORK 

dated  Laws,"  that  term  being  used  to  distinguish  the  new  statutes 
from  the  "Revised  Acts  of  1801,"  the  "Revised  Laws  of  1813," 
the  "Revised  Statutes  of  1830,"  and  the  "General  Laws  of 
1889-1900." 

All  the  laws  so  proposed  were  enacted  by  the  legislature 
of  1909,  except  the  Public  Service  Commissions  Law  and  the 
Railroad  Law.  They  included  the  "Penal  Code,"  with  its  name 
changed  to  the  "Penal  Law."  In  performing  its  work  the  board 
removed  the  substantive  provisions  of  the  Code  of  Civil  Pro- 
cedure and  distributed  them  among  the  various  consolidated 
laws,  the  larger  portion  of  which  was  inserted  in  the  new  ju- 
diciary law,  embracing  matters  relating  to  the  courts  and  their 
officers,  and  the  Code  of  Civil  and  Criminal  Procedure  were 
amended  generally  to  conform  to  the  plan  proposed  by  the 
board. 

The  Public  Service  Commission's  Law  and  the  Railroad 
Law  which  failed  of  passage  in  1909  was  each  passed  in  1910 
and  became  a  part  of  the  Consolidated  Laws. 

The  enactment  by  the  legislature  of  all  but  two  of  the 
laws  proposed  by  the  board,  and  the  subsequent  enactment  of 
these  two,  has  brought  the  statutes  of  the  State  out  from  the 
chaotic  condition  in  which  they  have  been  for  many  years,  and, 
for  the  first  time  since  the  Revised  Statutes  of  1830,  our  statu- 
tory laws  are  arranged  in  a  systematic  and  accessible  form. 

The  labors  of  the  board  in  preparing  and  the  action  of  the 
legislature  in  enacting  these  laws  have  met  the  general  approval 
and  commendation  of  the  bench  and  bar  of  the  State. 


443 


IN  DEX 


A 


Alexander,    James — page   249. 

AUard,   Anthony — 126. 

American  Jurisprudence — beginning  of, 

231. 
Andrews,   Charles — 390. 
AndroB,     Gov.    —    196;      re-establlBhea 

"Duke's    Laws,"    197. 
Appeals — New   Court   of,    383. 
Appellate  Divisions  of  Supreme  Court 

— 412 ;     Justices    and    Associates, 

413. 
Appellate  Tribunal — 343. 
Assembly  of  Nineteen — 18. 
Associate  Judges — Colonial,  290. 
Attorney  General — 425  ;  incumbents  of 

office,  427. 
Associate    Justices — 1777-1847,     371. 
Attorneys  General — Colonial,  290. 
Attwood — Chief  Justice,  300. 

B 

Beeckman,   William — 130. 
Blatchford,    Samuel — 327. 
Bout,   Jan   E. — 121. 
Bronson,   Greene  C. — 384. 
Burgomasters — list  of,  124. 
Burnet,   Gov.   William — 242. 


Code  of  Procedure — 440. 

Golden,    Cadwallader   D. — 356. 

Colonial  Assembly — first,   206. 

Common  Pleas — 394;  Judges  and  As- 
sociates,   398. 

Colve   Charter — 184. 

Colve,  Governor — 182. 

Cosby,   Governor — 247. 

Combury,  Lord — 234. 

Courts  under  Dutch — Patroon  Courts, 
19 ;  Offenses,  29 ;  Board  of  Nine 
Men,  50  ;  Burgomasters'  Court,  60  ; 
Procedures,  66  ;  Officers'  fees,  73 ; 
Sheriff,  duties  of,  84;  Advocates, 
list  of,   140 ;   Law  Books,   145. 

Courts  under  English— 152;  establish- 
ment of,  158  ;  Offenses,  160 ;  trial 
by  jury,  173 ;  courts  established 
under  Gov.  Sloughter,  223 ;  imder 
Gov.  Fletcher,  225 ;  closing  of,  by 
the  Revolution,  265. 

Court  of  Appeals — 382  ;  Judges,  1847- 
1870,  383  ;  Chief  Judges  after  1870, 
387  ;   Associates,  387. 

Court  of  Admiralty — 304  ;  officials,  307 ; 
after  Revolution,   342. 

Court  of  Assize — under  Nicolls,  269; 
first  meeting,  273 ;  members  of, 
1680,    279. 

Court  of  Claims — since  1897,  425. 

Court  of  Exchequer — 299. 

CuUen,  Edgar  M. — 392. 


Chancellors — under  State,  328  ;  list  of, 

339. 
Chancery   Court — first,    293. 
Chancery   Jurisprudence — 333. 
Chester,     Alden — (front,     portrait). 
Chief    Justices — 284 ;    list   of.    Colonial 

period,  289;  same,  1777-1847,  371. 
Church,  Sanford  E. — 388. 
Circuit    Judges— 1823-1846,     373. 


D 


Daly,  Charles  P. — 395,  397. 

Delegate  Convention — 1665,  155. 

De  Sille,  Nlcaclus — 108. 

"Duke's     Laws" — 156  ;      re-established, 

197. 
De  Peyster,  Johannes — 129. 
Divorce — in  Colonial  times,  316. 


445 


INDEX 


Dongan,   Gov.   Thomas — 203 ;   convenes 

first  real  legislative  assembly,  206 ; 

Assembly    abolished,    211 ;    grants 

charter  to  City  of  New  York,  212. 
Dudley,     Joseph — first     Chief     Justice, 

225.  285. 
Dutch  Colonization — 8. 
Dutch   rule — 3 ;    laws  and  ordinances, 

45. 
Dutch  Magistrates  and  Lawyers — 97;  in 

towns    outside    New    Amsterdam, 

134. 


E 


Earl,  Robert — 391. 

Eight  Men — Board  of,  39. 

Emmet,  Thomas  Addis — 427. 

English   supersede   Dutch — 149. 

English     superseded     by     Dutch — 179; 

English    authority    restored,     187 ; 

fully  established,   195. 
Estates — administration  of,  311. 


Fees,  court  officers  and  attorneys  un- 
der Stuyvesant — 73. 

Field,  David  D— 439. 

Fletcher,  Gov.  Benjamin — establishes 
courts,    225. 

Folger,   Charles  J. — 389. 


G 


Gardiner,  Addison — 386. 

Governor's    Councils    (Dutch) — list    of 

106. 
Grand  Jury — First  in  State,  361. 


H 


Hamilton,  Alexander — 323  ;  first  Impor- 
tant case,  352. 
Heathcote,  Caleb^231. 
Heermans,  Augustine — 116. 
Holland — Influence  of,  98. 
Hughes,  Charles  E. — 443. 


Impeachments   and   Correction    of   Er- 
rors— Court  for,   345. 
Irving,  John  T. — 394. 


Jansen,   Michael— 121. 

Jay,  John — 362. 

Jewett,  Freeborn  E. — 384. 

Jones,  Samuel — 337. 

Johnson,  Thomas — 233. 

Judicial    Circuits — established,    371. 

Judicial  Districts  under  Constitution  of 

1846—409. 
Judicial    Districts    and    Departments — 

present  (1910),  410. 
Jury — trial  by,  Instituted,  173. 
Justices'  Courts — 345. 


Kent,   James — 332,   369. 

King's  Prerogative — discussion  of,  242. 

Kieft,  William— 26. 

Kregier,  Martin — 126. 

Krol,  Bustiaen  Jansz — director  general, 

23. 
Kip,  Hendrick  H.— 118. 
Kuyter,  Joachim  P. — 118. 


Law — international  and  common,  ex- 
pounded by  Alexander  Hamilton, 
355. 

Lawyers — early,  262  ;  list  of,  pre- revo- 
lutionary, 264. 

Lansing,  John  Jr. — 331. 

Law  Books — under  Dutch  rule,  145. 

Law  Court — first  popular,  57  ;  at  Stadt 
Huys,   60. 

Laws  printed— 1694-1710.  429;  Hors- 
manden's  compilation,  429 ;  Living- 
ston and  Smith's,  430;  Statutory 
Revision  Commission,  431 ;  Jones 
and  Varlck's  revision,  433  ;  Green- 
leaf's  revision,  434 ;  revision  by 
Kent  and  Radcllffe,  435;  by  Van 
Ness  and  Woodworth,  435 ;  by 
John  Duer  and  others,  436 ;  by 
Denio  and  Tracy,  438 ;  Revision 
Commission,   1846,  439. 

Leisler,  Governor — 219 ;  trial  of  and 
execution,  220. 

Lewis,  Morgan — 371. 

Livingston,  Brockholst — 333. 

Livingston.  Robert  R. — 329. 


446 


INDEX 


Loockermanns,  Govert — 117. 
Lovelace,    Governor — 176,    240. 

M 

Magistrates — list  of,  outside  New  Am- 
sterdam, 134. 

Marcy,  William  L. — 369. 

Manhattan    Island — Discovery   of,    5. 

Mayor's  Court — New  York  City,  351. 

Mlnult,  Peter — corporate  administra- 
tion under,  14. 

Mitchell,  William— 372. 

Montgomerle,    Gov.    John — 246. 

N 

New  Netherland — religious  liberty,  105. 

New  York — Name  given,  152  ;  made  a 
municipality,  171 ;  first  city  char- 
ter,   212. 

Nlcolls,  Richard — deputy  governor,  151 ; 
creates  General  Court  of  Assize, 
269. 

Nine  Men — board  of,  50. 


Orphanmasters— 307. 
Oyer  and  Terminer — 367. 


Parker,  Alton  B. — 391. 

Patroon  Courts — 19. 

Peckham,   Rufus  W.— 387. 

Prerogative  Court — 357. 

Press — freedom    of,    251 ;     the    Zanger 

case,  252. 
Prison  rules — under  Stuyvesant,  62. 
Probate  Court — 357. 
Provincial   Secretaries— list  of,   106. 
Provoost,   David— 144. 


Ruger,    William   C— 391. 
.  Ruggles,  Charles  H. — 385. 


Sanford,  Nathan — 336. 

Schout  and  Schepens— 40 ;  under  Stuy- 
vesant,  65. 

Sheriff — duties  of,  under  Stuyvesant,  84. 

Sloughter,  Gov.— convenes  representa- 
tive assembly,  220. 


Smith,  William— 219. 

Sovereignty — Claimants  of,  188. 

Stadt   Huys— first   law   court,  60. 

State,  the — beginning  of,  323  ;  judici- 
ary system  established,  325. 

States  General — charter  by,   8. 

Steenwyck,    Cornells — 128. 

Stuyvesant,  Director  General — 45;  pro- 
claims laws  and  ordinances,  47. 

Superior  Court— City  of  New  York, 
399 ;  Chief  and  Associate  Justices, 
400. 

Supreme  Court — 269;  its  procedures, 
272 ;  early  cases,  274 ;  constitu- 
tional limitations,  281 ;  under  Con- 
stitution of  1777,  361 ;  first  rules, 
364;  reorganized,  401;  Justices 
after  1847,  403. 

Surrogates— powers  of,  358. 


Twelve  Men — first  representative  body 
of  New  Netherland,  37. 

Trade  in  America — parliamentary  reg- 
ulations,  305. 

Tompkins,   Daniel  D.— 364. 

V 

Van  Buren — John,   429. 

Van    Cortlandt,    Oloff — 120. 

Van  Couvenhoven,  Pieter — 131. 

Van  der  Donck,  Adrlaen — 140. 

Van  der  Grift,  Paulus — 127. 

Van  Dincklagen,  Lubbertus — 112. 

Van  Dyck,  Hendrich— 113. 

Van  Tienhoven,  Cornells — 110. 

Van   Twiner,   Wouter— director  general 

—25. 
Van  Dyck,  Hendrick — 113. 
Varick,   Richard — 433. 
Vice  Chancellors — list  of,   339. 

W 

Walworth,  Reuben  H.— 337,  359. 
West  India  Company — charter  of,   8. 
Widows  and  Orphans'  Court — 307. 
Wills  and  Administration— 312. 


Yates,  Joseph  C. — 367. 
York,  Duke  of— 149. 


447 


I- 


^ ;  ^0n 


1  ^.^"^W^- 


